Hawaii challenges

Hawaii challenges Trump stance on Supreme Court travel ban ruling

Fiancees appear to win last-minute reprieve as parts of controversial immigration order take effect.

By JOSH GERSTEIN

The State of Hawaii is asking a federal judge to rule that the administration's latest plan to carry out President Donald Trump's travel ban executive order defies the ruling the Supreme Court issued on the subject just four days ago.

In a new court filing, lawyers for the state and for a Hawaii imam say guidance the Trump administration issued Thursday takes too narrow a view of what family relationships qualify to exempt a foreigner from the travel ban and would deny admission to refugees who should be exempt from the ban due to their connections to a U.S. resettlement agency.

"This Court should clarify as soon as possible that the Supreme Court meant what it said, and that foreign nationals that credibly claim connections with this country cannot be denied entry under the President’s illegal Order," Hawaii Attorney General Douglas Chin and private counsel Neal Katyal wrote in a motion filed Thursday with U.S. District Court Judge Derrick Watson.

At about the same time the motion was filed, the Trump administration beat a partial retreat on one aspect of enforcement of the travel ban.

Earlier Thursday, officials said fiancés would enjoy no broad exemption from the directive, which calls for a 90-day halt of issuance of visas to citizens of six majority-Muslim countries and a 120-day halt to refugee admissions from around the globe.

However, moments before consular officials were set to start limiting visa issuance under new guidelines, the State Department changed its website to indicate that fiancés of U.S. citizens would be able to receive visas as usual.

When asked about the shift, a State Department official confirmed the change, but offered no explanation.

"Upon further review, fiancés will now be included as close family members," said the official, who requested anonymity.

The Supreme Court ruled Monday that portions of Trump's travel ban executive order could go into effect while the justices prepare to hear the case in October.

However, the high court said foreigners with a "close familial relationship" with a U.S. citizen would be exempt for now, as would those with concrete ties to a U.S. entity, like a business or university.

Despite the ruling, the Trump administration said Thursday it would not routinely exempt relatives like grandparents of U.S. citizens from the visa ban, limiting the exemption to a list of relationships that includes spouses, siblings, children and parents, as well as certain in-laws.

Administration officials also angered immigrant advocacy groups by declaring that refugees would not be considered to have U.S. ties simply because they had already been assigned to a U.S. refugee resettlement agency that had begun to make plans for their arrival.

"It is extremely difficult to see how a foreign national with an agreement to give a lecture within the United States may be considered to have a 'formal, documented' relationship with an entity in the United States. ... but a refugee with a guarantee of a local sponsor and a place to live cannot," the Hawaii state motion says.

A Justice Department spokeswoman declined to comment on the Hawaii filing, which was billed as an emergency motion to clarify the scope of the court's injunction.

Watson signaled that he was not likely to rule on the motion immediately. He told federal government lawyers to respond by Monday and gave Hawaii until next Thursday to make another submission, suggesting that no action on his injunction is likely for at least a week.

He did not immediately set a hearing on the state’s request.

One attorney involved in challenging the ban said he hopes the administration's last-minute reversal on fiancés means more adjustments may be forthcoming.

"We hope that the mistake they made on fiancés will get them to take a hard look at everything else so we don't have to unnecessarily litigate," the American Civil Liberties Union's Lee Gelernt said.

If further changes aren't made, however, more court action is in the works, attorneys said.

"There's definitely no shortage of people who are interested in litigating this," said Melanie Nezer of the refugee-aid group HIAS. "This is something that so many Americans across the county are very upset about."

Trump's first travel ban order, issued a week after he took office in January, and a successor order signed in March, generated a flurry of lawsuits in courts around the country.

Ultimately, the cases that went to the Supreme Court in recent weeks stemmed from injunctions judges in Hawaii and Maryland issued against Trump's March order.

Lawyers involved in the litigation said Watson's court was the most logical place to begin challenging the Trump administration's implementation of the Supreme Court's directive because the Hawaii injunction remains the broadest of the two reining in Trump's travel ban.

Watson's order covers Trump's efforts to impose a 120-day, global halt on the U.S. refugee program, while a Maryland federal judge's directive only affects the visa ban: a 90-day suspension of visa issuance to nationals of six majority-Muslim nations.

Trump has argued that both measures are needed to prevent terrorism attacks in the U.S., but critics say the orders as thinly veiled versions of the "Muslim ban" Trump promised on the campaign trail last year.

Administration officials declared Thursday that being assigned to a refugee group in the U.S. doesn't amount to the kind of "bona fide relationship" with the U.S. that the Supreme Court said qualified for an exemption from Trump's travel ban while the justices prepare to hear the crux of the dispute in October.

While the justices said a connection a person and a U.S. organization share that is "formal, documented and formed in the ordinary course" is good enough to get relief from the travel ban, a senior administration official said the fact that a U.S. refugee organization has been making preparations —usually for months — for a specific refugee's arrival isn't enough to qualify for an exemption.

“Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient in and of itself to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this," a senior administration official told reporters Thursday.

Soon after the Supreme Court ruling, refugee advocates said they were not too worried about the travel ban's impact in the near term because the court's waiver for people with organizational ties seemed to cover most of those likely to arrive in the coming months. Now, it looks like refugee groups will have to mount a legal fight to keep those refugees coming.

"We're going to do whatever needs to be done to make sure the government doesn't gut the Supreme Court decision as it simultaneously guts the refugee program," said Becca Heller of the International Refugee Assistance Project. "They're halting almost the whole refugee program, which I think is a pretty gross violation of the Supreme Court's order. ... We're going to need to challenge that. We're working out precisely the best way to do so."

"There are 20,000 to 25,000 refugees not yet here who are already clients of refugee resettlement agencies who have been preparing for their arrival," said Justin Cox, an attorney with the National Immigration Law Center. "The government's interpretation of this as to refugees will affect tens of thousands of the most vulnerable people in the world. We will be seeking recourse. Certainly, efforts will be made to fix this."

An administration official complained Thursday that the Supreme Court decision had not given them clear guidance about how to handle refugees and what sort of ties were enough to escape Trump's order.

"While the SCOTUS ruling did provide some specific examples related to visas, there were no specific examples related to refugees per se. So, I think that we're going to be working on that," the official said.

The administration also faced anger Thursday over its decision to exclude grandparents from the list of family relationships who could help a foreigner qualify as exempt from the travel ban.

"To stop a grandma from coming to visit their grandchildren in the name of security, none of this really makes a lot of sense," Nezer said.

State Department spokeswoman Heather Nauert said officials looked to definitions of family in federal immigration law when crafting the guidance.

"That is under the Immigration and Nationality Act, and that is where we took that definition from," Nauert told reporters.

But another official acknowledged that the administration's definition actually goes further than immigration law, which doesn't specifically recognize in-laws, for example. "You will see some categories in addition to the basic definition in the INA," the official said.

Why did the Trump team go beyond the statute? Because one of the litigants in the Hawaii case was trying to bring in his mother-in-law and the Supreme Court specifically included that as "a close familial relationship."

Cox, who is involved in the Maryland case, complained that despite the pending litigation the federal government declined to negotiate or have a dialogue about what the Supreme Court ruling requires.

"They've refused, frankly, to engage in any good faith conversations with us," he said.