Grandparents and other extended relatives are exempt from President Trump’s travel ban, a federal judge in Hawaii declared late Thursday, again stopping the administration from implementing the president’s controversial executive order in the way that it wants.
U.S. District Judge Derrick K. Watson wrote that the government’s “narrowly defined list” of who might be exempt was not supported by either the Supreme Court decision partially unfreezing the ban or by the law.
“Common sense, for instance, dictates that close family members be defined to include grandparents,” Watson wrote. “Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”
Watson wrote that refugees with an assurance from a resettlement agency could also be exempt from the ban.
Attorney General Jeff Sessions said in a statement that Justice Department would “reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation.”
“Once again, we are faced with a situation in which a single federal district court has undertaken by a nationwide injunction to micromanage decisions of the co-equal Executive Branch related to our national security,” Sessions said. “By this decision, the district court has improperly substituted its policy preferences for the national security judgments of the Executive branch in a time of grave threats, defying both the lawful prerogatives of the Executive Branch and the directive of the Supreme Court.”
As of Friday afternoon, the Justice Department already had filed a “notice of appeal” — which lawyers view as a procedural step to help move the matter straight to the Supreme Court.
Justice Department lawyers believe that federal law allows as much and that the Supreme Court still has jurisdiction in the case to clarify the order it issued. There is also a Supreme Court rule that allows the justices to get involved before an appeals court rules if a case is “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Department of Homeland Security and State Department spokesmen said their agencies were reviewing the decision with the Justice Department to work on implementation.
At issue is how far the administration can go in keeping relatives of U.S. residents out under the president’s travel ban, which temporarily bars entry for all refugees and the issuance of new visas to residents of six Muslim-majority countries.
The Supreme Court ruled late last month that the government could begin enforcing the measure, but not against those with “a credible claim of a bona fide relationship” with a person or entity in the United States.
The court offered only limited guidance on what type of relationship would qualify. “Close familial” relationships would count, the court said, as would ties such as a job offer or school acceptance letter that were “formal, documented, and formed in the ordinary course.”
The administration said it would let into the United States from the six affected countries parents, parents-in-law, siblings, spouses, children, sons and daughters, fiances, and sons-in-law and daughters-in-law of those already here.
Still banned, however, were grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law. And the administration also said it would keep out refugees who had a formal assurance from a resettlement agency.
The state of Hawaii, which has been suing over the travel ban, soon asked Watson to intervene.
The district judge had initially ruled against Hawaii in the case, telling it to go straight to the Supreme Court. The U.S. Court of Appeals for the 9th Circuit also rebuffed the state’s request, although it offered a way forward: Watson, the appeals court said, would have jurisdiction over a reframed request. Hawaii then filed such a request, setting up Watson’s ruling Thursday — which allows the entry of those the government had wanted to keep out.
Hawaii Attorney General Douglas S. Chin said in a statement: “The federal court today makes clear that the U.S. Government may not ignore the scope of the partial travel ban as it sees fit. Family members have been separated and real people have suffered enough. Courts have found that this Executive Order has no basis in stopping terrorism and is just a pretext for illegal and unconstitutional discrimination. We will continue preparing for arguments before the U.S. Supreme Court in October.”
The government had argued that it drew its definition of who counted as a close family member from immigration law. The ruling was a blow to the administration, although not the last word on the case.
Both those suing over the ban and the government lawyers defending it indicated earlier they thought the question of who could properly be kept out after the Supreme Court unfroze the ban was a matter destined for higher courts.
While the Supreme Court partially unfroze Trump’s travel ban, it did so only temporarily, indicating it would truly take up the case in the fall. By that time, the bans might have expired. The barring of new visas to those from six countries is supposed to last 90 days, and the barring of refugees is supposed to last 120 days.