Update: Effect of new litigation in Hawaii and U.S. Supreme Court on Second Executive Order / Travel Ban 2.0

As noted in our prior blog post, the U.S. Supreme Court has partially reinstated the Trump Administration’s second Executive Order regarding travel and refugee admissions (“EO-2”), after several lower court orders impeded its implementation. However, the Supreme Court did exempt from EO-2’s reach nationals of the six affected countries with a “credible claim of a bona fide relationship with a person or entity in the United States,” such as a “close familial relationship.”

The Supreme Court did not define what would constitute such a relationship in detail, but the Trump Administration subsequently defined it as including “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.” On July 13, 2017, in new litigation regarding EO-2, the U.S. District Court for the District of Hawaii broadened this list to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. The State Department issued a cable (available on LexisNexis) to U.S. embassies and consulates instructing them to implement this expanded definition.

The Trump Administration appealed the District Court decision. On July 19, 2017 the U.S. Supreme Court issued an order staying the order in part, and upholding it in part. The Supreme Court stayed the part of the order dealing with refugees, effectively banning refuges who are unable to establish a “bona fide relationship” with an entity in the United States even if they have a formal assurance from a U.S. resettlement agency. However, the Supreme Court declined to stay the part of the order that expanded the list of family members, leaving the District Court’s expanded definition of “close familial relationship” in effect.

The Supreme Court will hear full arguments from the parties regarding EO-2 in October 2017.

Chris Beckerson. © Jewell Stewart & Pratt PC 2017