July 20, 2017

Private: Muslim Ban Litigation: An Unfinished Symphony

Muslim Ban, Shoba Sivaprasad Wadhia, Shoba Wadhia

by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.

On June 26, the Supreme Court granted a partial stay and also granted certiorari in Trump v. Hawaii and Trump v. International Refugee Assistance Project, the Muslim travel ban cases. Here is a short analysis. The scope of the partial stay is as follows: within 72 hours of the ruling, any person from the six designated countries or refugee who cannot show a “bona fide relationship to a person or entity” will be banned from entry. The Department of State indicated that the travel ban would go into effect at 8:00pm EDT on June 29, 2017. Hours before the ban was to go into effect, the government issued guidance defining what constitutes a “bona fide relationship” narrowly. Litigation about the meaning of a “bona fide relationship” ensued in the Hawaii District Court and Ninth Circuit Court of Appeals.

On July 13, 2017, the Hawaii District Court rejected the government’s narrow definition of bona fide relationship and ruled that grandparents and other family members cannot be excluded. Said the Hawaii court: “In sum, the Government’s definition of close familial relationship is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it. Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.” The Hawaii court also discussed refugees and in doing so concluded that those with a “formal assurance” by a refugee resettlement agency should qualify under the “bona fide relationship” exemption outlined by the Supreme Court on June 26.

On July 18, 2017, the Department of State issued an announcement defining “close familial relationship” more expansively. Meanwhile, the government filed papers in the Supreme Court asking it to intervene again and the plaintiffs in Hawaii filed a response on Tuesday, July 18.

On July 19, the U.S. Supreme Court issued a ruling maintaining the expanded definition of bona fide relationship adopted by the Hawaii court. Specifically, the Court denied the administration's motion, leaving in place Judge Watson's broader interpretation of "close familial relationship." The Court also stayed the District Court's ruling regarding refugees pending resolution of the administration's appeal to the Ninth Circuit, which means that refugees are banned from entering the United States if they lack a family or related connection. 

The Supreme Court ruling is encouraging as it relates to families (and the very family members I and others around the world have embraced and connected with). At the same time, the ruling is disappointing as it rejects refugees who have otherwise fled persecution and made contact to a refugee agency in the United States. As a teacher of asylum and refugee law, this conclusion is inconsistent with the plain reading of “bona fide” or “any connection” language used by the Supreme Court on June 26 and furthermore undermines the nation’s commitment to protect refugees.

Aside from the above litigation, but equally important, is the specific grant of certiorari by the Supreme Court on June 26 and the scheduling of oral argument on October 10. How the government implements the ban between  now and October matters and promises to be murky at best.