Law360, New York (August 10, 2017, 10:53 PM EDT) -- The federal government told the Ninth Circuit on Wednesday that a “formal assurance” from a refugee resettlement agency is not enough to exempt a foreign national from the Trump administration’s travel ban, nor are the state of Hawaii’s “unpersuasive” efforts to widen the definition of “close” family.
In a reply brief, the U.S. Department of Justice continued to fight a July ruling from U.S. District Judge Derrick K. Watson in Hawaii holding that refugees with assurances of resettlement are exempt from President Donald Trump’s executive order barring nationals from six Muslim-majority countries from entering the U.S., as are grandparents, in-laws and other types of family members outside the government’s narrow definition of “close.”
The government said a formal assurance from a U.S. resettlement agency does not count as the kind of “bona fide” relationship with a U.S. entity that the U.S. Supreme Court said would exempt a traveler from the ban when it partially reinstated Trump's order on June 26. The Justice Department argued that no individual refugee is party to the agreement made between the resettlement agency and the U.S. Department of State and that the refugee generally has no contact with the agency before arriving.
On the family portion of Judge Watson’s ruling, the government said the most relevant provisions for defining the term “close” are those in the Immigration and Nationality Act that govern which family members are close enough to seek immigrant visas for family reunification.
“Plaintiffs’ efforts to expand ‘close’ family to include siblings-in-law, cousins, nieces and nephews, aunts and uncles, and grandparents — i.e., any familial relationship but the most distant — are unpersuasive,” the government said.
The appeals court last heard from Hawaii on Aug. 3, and oral arguments are set for Aug. 28, according to the federal court docket.
Late Thursday, the Trump administration also filed a brief in the ongoing Supreme Court case over the travel ban, arguing that under the high court’s precedent, the president’s “national security” findings give a facially legitimate reason for the order’s exclusion of certain foreign nationals from the U.S.
Meanwhile, in the Ninth Circuit case Thursday, the U.S. Committee for Refugees and Immigrants filed an amicus brief in support of Hawaii, arguing that the district judge’s holding on refugees should be upheld.
“The district court correctly concluded that the existence of a formal assurance of services from a refugee resettlement agency is a type of ‘bona fide relationship’ with a foreign national,” the group said.
The committee further argued that the government — not the district court — is trying to “rewrite” the high court’s June opinion, and that it and other agencies in its network are being harmed by having refugees who have received formal assurances excluded. It said it also joined the International Refugee Assistance Project in urging the appeals court to expedite the appeal and the issuance of a mandate.
A number of other amicus briefs were filed at the Ninth Circuit last week also urging the court to affirm Judge Watson’s ruling, including one by IRAP and HIAS Inc., or the Hebrew Immigrant Aid Society, which argued that more than 200,000 refugees currently seeking resettlement in the U.S. are threatened by the administration’s executive order and that Judge Watson correctly enjoined “the government’s policy of excluding refugees with formal assurances.”
Other amicus briefs were filed at the Ninth Circuit in support of Hawaii, including ones by Human Rights First, a group of American Muslim citizens, a group of former national security officials, a number of law professors, and the states of New York, California, Connecticut and Delaware.
The federal government appealed Judge Watson’s ruling the day after he issued it.
“The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the executive branch's duty to protect the nation,” U.S. Attorney General Jeff Sessions said in a statement at the time, referring to the Hawaii federal court's earlier injunction blocking the travel ban.
The federal government asked the Ninth Circuit to pause Judge Watson’s order to allow the justices sufficient time to review it. In addition to asking the Supreme Court to clarify its ruling and issue a temporary administrative stay, it also sought a stay from the Ninth Circuit in case the justices opted to decline to rule pending the court’s consideration of the matter.
The Supreme Court agreed on June 26 to take up the appeal over the ban — although it won’t hear the case until this fall — and it granted the government's request to reinstate part of the order in the meantime. It said that people from the six affected countries who do not have a close family relationship tying them to the U.S. or another “bona fide” connection may not gain entry.
The State Department then released guidance clarifying that “close family” would not include grandparents, grandchildren, uncles, aunts, nephews, nieces, sisters-in-law, brothers-in-law or “any other ‘extended’ family members.”
An attorney for the refugee groups did not respond to requests for comment Thursday. A DOJ representative and a representative for Hawaii's Department of the Attorney General declined to comment.
The International Refugee Assistance Project and HIAS Inc. are represented by Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, Sarah L. Mehta, Spencer E. Amdur, David K. Hausman, Cecillia D. Wang, Cody H. Wofsy, David Cole, Daniel Mach and Heather L. Weaver of the American Civil Liberties Union Foundation, by Karen C. Tumlin, Nicholas Espíritu. Melissa S. Keaney, Esther Sung, Marielena Hincapié and Justin B. Cox of the National Immigration Law Center, by Mariko Hirose, Rebecca Heller and Mark Wasef of the International Refugee Assistance Project and by Mateo Caballero of the ACLU of Hawaii Foundation.
Hawaii and named plaintiff Ismail Elshikh are represented by Neal Katyal, Colleen Roh Sinzdak, Mitchell P. Reich, Elizabeth Hagerty, Thomas P. Schmidt, Sara Solow and Alexander B. Bowerman of Hogan Lovells, by Hawaii Attorney General Doug S. Chin, Hawaii Solicitor General Clyde J. Wadsworth, and by Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry and Robert T. Nakatsuji of the Hawaii Department of the Attorney General.
The federal government is represented by acting Solicitor General Jeffrey B. Wall, acting Assistant Attorney General Chad A. Readler, acting Assistant U.S. Attorney Elliot Enoki, Deputy Solicitor General Edwin S. Kneedler, Deputy Assistant Attorney General Hashim M. Mooppan, and attorneys Douglas N. Letter, Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr. of the U.S. Department of Justice.
The case is State of Hawaii et al. v. Donald Trump et al., case number 17-16426, in the U.S. Court of Appeals for the Ninth Circuit.