New York Times

Justices Halt Move to Lift Parts of Ban On Refugees

September 12, 2017

by Adam Liptak

WASHINGTON — Justice Anthony M. Kennedy on Monday issued a temporary order allowing the Trump administration to exclude most refugees from entering the United States while the Supreme Court considers challenges to its revised travel ban.

The so-called administrative stay will probably be in place for only a short time, and the court is likely to issue a more considered ruling in a matter of days.

Had the Supreme Court not acted, an appeals court ruling lifting the ban on refugees would have gone into effect on Tuesday.

The Supreme Court has now interceded three times to fine-tune the scope of Mr. Trump’s revised ban while it considers broader issues about its lawfulness. Issued in January and revised in March, the ban caused chaos at airports nationwide and gave rise to a global outcry, prompting a cascade of litigation as well.

Two federal appeals courts blocked central parts of the ban. One said it violated the Constitution because it discriminated based on religion, the other said that it exceeded the president’s statutory authority to control immigration.

In June, the Supreme Court agreed to hear appeals from those rulings and temporarily reinstated part of the ban — but only for people without “a credible claim of a bona fide relationship with a person or entity in the United States.” The court did not specify who qualified as a close relative, though it did say spouses and mothers-in-law “clearly” counted.

The Trump administration interpreted the Supreme Court’s decision to mean excluding most refugees. It also said that only some relatives of American residents — parents, children, spouses, siblings, parents-in-law, sons- and daughters-in-law and people engaged to be married — could enter. The administration barred other relatives, including grandparents, grandchildren, aunts, uncles, nephews, nieces and cousins.

In July, Judge Derrick K. Watson of the Federal District Court in Honolulu disagreed with the administration’s interpretation of the Supreme Court’s ruling as to both refugees and relatives.

The administration had said it was entitled to exclude refugees whom resettlement agencies had planned to help move to the United States. Judge Watson disagreed, writing that the Supreme Court had meant to allow such people to enter the country.

“An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones,” he wrote. “It is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security.”

Judge Watson also said the administration’s approach to relatives was too narrow.

“Common sense, for instance, dictates that close family members be defined to include grandparents,” Judge Watson wrote. “Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.”

Bypassing the Ninth Circuit, the administration asked the Supreme Court to intervene. On July 19, the justices declined, sending the case back to the appeals court.

In its brief, unsigned order, the Supreme Court provisionally let stand Judge Watson’s ruling as to relatives. But it blocked his decision “with respect to refugees covered by a formal assurance” until the “resolution of the government’s appeal to the Court of Appeals for the Ninth Circuit.”

On Thursday, a three-judge panel of the Ninth Circuit ruled against the administration on both points. On Monday, in its latest emergency application to the Supreme Court, the administration challenged only the part of the ruling concerning refugees.

The Department of Justice argued that agreements between the government and resettlement agencies do not give rise to the “bona fide relationship” the Supreme Court said were required to allow entry while the travel ban litigation moved forward.