by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.
A travel ban was signed by the president in the form of an Executive Order on March 6, 2017. The most controversial provisions of the ban include a 90-day travel restriction for nationals from six countries with Muslim populations of more than 90 percent: Iran, Libya, Somalia, Sudan, Syria and Yemen as well as a suspension of the refugee admissions program for a period of 120 days. The ban was successfully challenged in the courts on both constitutional and statutory grounds.
On June 26, the Supreme Court of the United States issued a significant decision on the travel ban, agreeing to hear the case in the October 2017 term and also allowing part of the ban to go into effect. The formula offered was as follows: any national from the six countries impacted by the ban or refugee who lacks a credible “bona fide relationship to a person or entity” is banned from the United States. Unsurprisingly, attorneys and affected communities were eager to understand how “bona fide relationship” would be defined and applied. While the Supreme Court offered a few examples of what might qualify as a bona fide relationship to a person or entity, the uncertainty about how this would be applied by the implementing agencies (in this case Department of Homeland Security and Department of State) is real.
Hours before the ban was to go into effect at 8:00pm EST on June 29, the Departments of State and Homeland Security issued “guidance” which to say the least is controversial. Guidance from DHS offered the following question and answer regarding the definition of “bona fide relationship:”
Q29. How is USCIS determining whether a refugee applicant has a relationship to a person in the United States?
The Supreme Court explained, “For individuals, a close familial relationship is required. . .” A “close family” relationship includes: a parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.
A refugee will be considered to have a credible claim to a bona fide relationship with a person in the United States upon presentation of sufficient documentation or other verifiable information supporting that claim.
Almost immediately, a lawsuit was filed in the federal district court of Hawaii asking the court to “clarify” the Supreme Court’s definition of “bona fide relationship” and criticizing the agency’s interpretation. Among the jurisprudence referenced by the Supreme Court and the litigants was the well-known case of Moore v. City of Cleveland. There, the Supreme Court held:
“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.
On July 6, the Hawaii court refused to clarify the scope of the preliminary injunction suggesting that the ball is in the Supreme Court’s court. The case was appealed to the Ninth Circuit Court of Appeals and once again thrown out on jurisdictional grounds on July 7. Notably, the Ninth Circuit indicated that the parties could go back to the district court and ask it to enforce the Supreme Court’s order. On July 7, the plaintiffs filed a second motion along these lines and ultimately prevailed. On July 13, the Hawaii court issued a preliminary injunction preventing the government from applying the ban to the very family members the administration sought to exclude. Said the Hawaii Court,
[T]he Government’s definition of ‘close familial relationship’ is only not compelled by the Supreme Court’s June 26 decision, but contracts 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 grandmas. Indeed, grandparents are the epitome of close family members.
While the July 13 ruling by the Hawaii court is a win for grandparents and common sense, the government’s (mis)understanding of family looms. Law aside, the debate around “bona fide relationship” raises fundamental questions about culture, identity and family. Many define family in ways that go beyond the nuclear one. Banning or restricting a grandparent or aunt based on the absence of a “bona fide” relationship undermines not only the jurisprudence around family but also the experiences of first and second generation immigrants living in the United States. The sting of excluding family members like grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins also sends the message that such relationships are sham or unreal. But what is truly unreal is the government’s narrow grasp of family. In the last eight weeks, I have attended the wedding of my first cousin, hugged and spent time with my paternal uncles and nephew, hosted another first cousin and her family from India and celebrated the 75th birthday of my maternal uncle from India. I hold each of these people close to my heart --and am heartbroken to think that these relationships are devalued (and worse, outlawed) by a government responsible for leading the greatest democracy in the world.