August 22nd, 2018
Travel Ban Update –Noncitizens with Extended Family Members Exempted from Ban
On July 19, 2017, the Supreme Court issued another update to President Trump’s travel ban. Now, those with extended family members in the U.S. are considered to have “close familial ties” here and are exempt from the ban. See below for a more detailed description of how this update has unfolded.
On June 26, 2017, the U.S. Supreme Court issued a decision allowing partial implementation of Executive Order No. 13780 (EO), also known as President Trump’s travel ban. As described in our prior blog post, the decision allowed the administration to implement a limited version of the EO but stated it could not be enforced against foreign nationals who had a “credible claim of a bona fide relationship with a person or entity in the U.S.” The Supreme Court did not explicitly define all types of “bona fide relationships;” however, it did note that a “close familial relationship,” an offer of employment, or admission to an American university would suffice.
The U.S. State Department interpreted the terms “bona fide relationship” and “close familial ties” narrowly. Specifically, a relationship with a U.S.-based refugee resettlement agency would not qualify a refugee with a “bona fide relationship.” A “close familial relationship” was defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. It did not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other extended family members.
Those who challenged the interpretation brought the case back into Hawaii District Court, arguing that the State Department’s definitions were too narrow. In its decision, the District Court did two things. First, it expanded the definition of “close family” to include grandparents, cousins, and other extended family. Second, it held that refugees who had been assigned to a U.S. based refugee resettlement agency had a “bona fide relationship” and were exempted from the EO.
The government challenged the District Court’s ruling and sought guidance from the Supreme Court on the meaning of “bona fide relationship.”
On July 19, 2017, the Supreme Court issued a short order that kept the District Court’s exemption for extended family members in place, but refused to extend the exemption to refugees with a relationship with a resettlement agency. The Supreme Court left the latter decision to the 9th Circuit of Appeals. It is still unclear when the 9th Circuit will hear the case.