Family Ties Take Center Stage as Justice Department Defends Scope of Travel Ban

by Matthew Renda, Court House News, August 28, 2017

President Donald Trump’s travel ban was back in court on Monday afternoon, as attorneys for the Justice Department and the state of Hawaii squared off in Ninth Circuit to settle the question of what the U.S. Supreme Court meant by “bona fide” relationship.

This past June, the Supreme Court agreed to decide whether Trump’s executive order banning travel by citizens of six Muslim-majority nations violates the Equal Protection Clause of the U.S. Constitution.

The countries include Libya, Somalia, Iran, Syria, Yemen and Sudan.

In so doing, the high court’s justices also stayed the injunctions that prevented the government from implementing the executive order in the short-term unless people had a “bona fide relationship” with the United States, typically interpreted to mean close family members.

However, Hawaii – where the injunction on the executive order originated – said the interpretation by the federal government, which would only allow immediate family members and not grandparents, aunts, uncles and cousins, was too narrow.

U.S. District Judge Derrick Watson agreed with the state last month, finding the Trump administration’s interpretation was too narrow. The Justice Department appealed, and both sides took their places before a three-judge appellate panel on Monday.

Judging by the content and tenor of the questions asked by the judges of Justice Department attorney Hashim Mooppan, the government faces an uphill battle.

“In what universe is a grandmother not a close family member?” Circuit Judge Ronald Gould, a President Bill Clinton appointee, asked.

“The Supreme Court has made this entire issue clear when they use a mother-in-law as an example of a close family member,” Senior Circuit Judge Michael Daly Hawkins said.

Mooppan fielded tough questions all day, but continued to assert that the Supreme Court nodded to the definition of “close family relationships” in the original executive order.

Attorney for Hawaii Colleen Sinzdak said such an interpretation is not supported by the Immigration and Nationality Act, which draws a distinction between close and immediate family.

“The Supreme Court held that when a foreign national has a relationship with an individual or an entity, the harm inflicted by her exclusion outweighs the alleged harms the government asserted,” Sinzdak said, arguing the government’s position stems from a fundamental misreading of the Supreme Court’s limited stay on the injunction.

Circuit Judge Richard Paez rounded out the Ninth Circuit panel, which took the matter under submission and is expected to rule within three months.

Whatever the Ninth Circuit’s ruling, it will have a limited shelf life as the Supreme Court will take up the travel ban’s constitutionality on Oct. 10.

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