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In IRAP v. Trump, the Supreme Court carved out an exception to the travel ban for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Court stopped short of defining which types of family relationships are, and are not, bona fide. Instead it gave examples of what would qualify: “A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.” Beyond that, the Court ostensibly left the category to the executive branch to define, and inevitably, the judiciary to scrutinize.
According to a State Department cable to all diplomatic and consular posts, released by Reuters, the government has now defined “close family” as “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships.” However, “close family” does not include “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members.”
At first blush, it may seem improper to divide up families based on such artificial lines, especially in situations where a grandparent or aunt may be the primary caregiver of a U.S. citizen or lawful permanent resident. But though harsh, our immigration law routinely makes such distinctions.
Notably, 8 U.S.C. § 1153(a) puts different caps on the number of family-sponsored immigrant visas issued each year based on the closeness of kinship. First, “spouses or children of an alien lawfully admitted for permanent residence” are allocated the most visas, “in a number not to exceed 114,200.” Second, “[q]ualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000.” And third, “immigrants who are the unmarried sons or daughters of citizens of the United States” and “immigrants who are the married sons or married daughters of citizens of the United States” are two separate groups that are each allocated up to 23,400 visas. These categories reflect a congressional judgment that some familiar relationships are more important than others, in terms of visa issuances per year. Unmarried sons & daughters of US citizens, spouses and unmarried sons and daughters of LPRs, married sons and daughters of US citizens, and brothers and sisters of US citizens are treated differently.
In fact, as a matter of longstanding U.S. immigration law, certain more distant relatives cannot petition for visas at all. The State Department has explicitly stated that “Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for” immigrant visas. (To be precise, a person who happens to be a grandparent, aunt, uncle, etc. can sponsor his or her own child, spouse, parent, or sibling for an immigrant visa, but not those more distantly related). In contrast, immediate relatives (spouse, children, parents) of U.S. citizens are not subject to the cap and immediately eligible for a visa. Again, this framework reflects different congressional judgments about the appropriateness of capping based on closeness of familial ties. The President’s distinctions are just as reasonable as those of Congress: if the former are invalidated on constitutional grounds, the latter come into doubt.
As for immediate impact, under the terms of Trump’s executive order, aliens with validly-issued visas will not be halted at the airport, unless there is an independent reason (separate from the executive order) to deny entry: for example, if they submit fraudulent documentation, or their names turn up on a watch list. This should eliminate any chaos at international terminals this evening. Furthermore, under the consular non-reviewability doctrine, denials of visas are generally not justiciable. Thus to protest the new Trump administration guidance, various immigrant groups will probably seek to hold State Department officials in contempt of court in the district courts for denying visas to relatives with “bona fide” connections to the United States. The plaintiffs will bear a heavy burden.
In the face of such challenges, Trump’s new guidance passes the appropriate level of scrutiny. Though far from perfect, I suspect the government’s line-drawing in the wake of the Supreme Court’s decision to lift portions of the injunctions in IRAP v. Trump and Hawaii v. Trump was designed to mirror, more-or-less, the existing framework for issuing immigrant visas. And it is a reasonable construction, as the term “bona fide” is not defined anywhere in our immigration laws. That said, while the government is usually given some deference to define ambiguous terms in a statute, to date, district courts in Hawaii, Maryland, and Washington have not afforded the same measure for President Trump’s executive actions. I am hopeful these judges will read IRAP v. Trump the way Jack Goldsmith did and “turn down the temperature” of these proceedings. A global injunction this evening before the policy goes into effect is unnecessary and unwarranted.
I’ll close this post with Justice Thomas’s observation in IRAP v. Trump about the difficulties that he anticipated would result from the Court’s failure to define “bona fide.”
Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
I suspect Justice Thomas will be proven exactly right. Let the next round of litigation begin.
[Update, 7:28 pm: Some have suggested that because the Court indicated that Dr. Elshikh’s mother-in-law qualifies for a waiver, then the Court was attempting to reach beyond the nuclear family. The record does not support that conclusion. Paragraph 76 of the First Amended Complaint in Hawaii v. Trump provides that Dr. Elshikh’s mother-in-law’s I-130 petition was granted in 2005:
Although Mr. Elshikh, his wife, and their children are all American citizens, and although Mr. Elshikh’s wife’s I-130 Petition was granted, the Executive Order will prevent Mr. Elshikh’s mother-in-law from visiting her family in Hawai‘i. She last visited the family in 2005, when she stayed for one month. She has not met two of Mr. Elshikh’s children, and only Mr. Elshikh’s oldest child remembers meeting her grandmother. The family is devastated.
The petition was not granted based on the fact that the woman was the mother-in-law of Dr. Elshikh. Rather, it was granted because Dr. Elshikh’s wife submitted the petition for her mother. Due to this close relationship from a U.S. citizen child, the visa was immediately available. In other word, Ms. Elshikh petitioned for her mother to receive a visa. Thus, the mother has the requisite relation, and would be exempted from the travel ban. Again, to prove the point that our immigration law routinely favors the nuclear family, an I-130 petition can be filed only on behalf of spouses, children, siblings, or parents–not in-laws or grandparents.
All of that said, note that under Section 14 of the State Department cable, grandparents and other relatives can seek a "visa on a case-by-case basis" where they demonstrate that "denying entry during the 90-day suspension would cause undue hardship," their "entry would not pose a threat to national security," and their "entry would be in the public interest." In pressing cases, grandmas, grandpa and fiancé(e)s can still receive visas over the summer.]