• Hawaii District Court Clarifies Scope of Travel Ban
  • August 23, 2017
  • On July 13, 2017, the United States District Court for the District of Hawaii held in Hawaii v. Trump that the Trump Administration could not apply the "travel ban" to grandparents, grandchildren, and other close relatives. The court further held that the travel ban could not be applied to a refugee issued a formal assurance from a U.S.-based refugee resettlement agency that the agency will provide, or ensure the arrangement of, reception and placement services to that refugee.

    The procedural history of Hawaii v. Trump is lengthy, and for a more detailed discussion, we would direct readers to our previous alerts on the matter (here, here, and here). In short, on March 6, 2017, President Trump signed an executive order barring nationals from six Muslim-majority countries from entering the United States for a period of at least 90 days and suspending the U.S. Refugee Admissions Program (USRAP) for a period of at least 120 days. Several lawsuits were filed in the immediate aftermath of the order's issuance, including a case brought by the State of Hawaii and a local imam whose family was subject to the ban and thus would have been prohibited from immigrating to the United States. On March 29, 2017, the U.S. District Court for the District of Hawaii converted a temporary restraining order it had previously issued into a preliminary injunction, and stopped the government from implementing the travel ban pending the outcome of the lawsuit. On June 12, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed the injunction. The government petitioned for certiorari with the United States Supreme Court.

    On June 26, 2017, the Supreme Court granted certiorari to review the case and modified the Hawaii District Court's injunction. Specifically, the Court held that the ban could not be applied to any foreign nationals "who have a credible claim of a bona fide relationship with a person or entity in the United States," but could be applied to individuals without such a claim.

    Following the Court's decision, the U.S. Department of State-which is primarily responsible for adjudicating visas-issued guidance purporting to implement the Supreme Court's decision. The State Department guidance defines "close familial relationship" as including a parent, parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step relationships. The State Department's definition does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law. The State Department also asserted that a formal assurance from a U.S. refugee resettlement agency was not sufficient in and of itself to establish a qualifying relationship for the refugee with an entity in the United States.

    The Hawaii District Court's July 13, 2017 ruling declared the government's interpretation of the Supreme Court's decision to be unduly restrictive. The court based its decision on immigration regulations defining "close blood relatives," the text of the Supreme Court's decision in Hawaii v. Trump itself-which provided that a mother-in-law relationship was "clearly" sufficiently close as to escape the reach of the ban-and other Supreme Court cases in which the Court had expansively defined familial relationships. As a result of the July 13 ruling, the government may not apply the travel ban to any person with any of the following familial relationships: parents, parents-in-law, spouses, fiancés, children, adult sons or daughters, sons-in-law, daughters-in-law, siblings (whether whole or half), step relations, grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law.

    The Hawaii District Court also rejected the State Department's position regarding refugees who had received assurances from U.S. refugee agencies, because such assurances are formal, binding, issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and they are issued in the ordinary course and historically have been for decades. The court prohibited the government from applying the travel ban to refugees who have a formal assurance from an agency within the United States that the agency will provide, or ensure the arrangement of, reception and placement services to that refugee.

    On July 14, 2017, the government filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit. We will provide additional updates as the landscape changes.