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Earlier this week, immigration attorney and former AILA president David Leopold provided a unique take on the Supreme Court’s decision on IRAP v. Trump – namely, that it wasn’t the win the Trump Administration has been claiming. Leopold warned, however, that “the real concern after yesterday’s ruling is not that the Supreme Court made a problematic tweak to the nationwide injunction, it’s the question of how the Trump Administration will act.”
Today, Leopold pens a scathing must-read Medium post condemning the State Department’s newly released criteria for visa applicants from the six impacted countries.
Leopold’s new piece, “When Family Isn’t Family: Trump Muslim Ban Edition,” is excerpted below and available online here.
Today we’re getting our answer. And it looks like the Trump administration intends to apply the Travel Ban well beyond the limited scope set by the Supreme Court by offering a very narrow and unduly restrictive interpretation of “bona fide” family relationship.
This arguably violates the Supreme Court’s order in letter and spirit. The justices did not limit the injunction to first degree relatives. What they said was that Trump’s Travel Ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Court listed examples of people who would be permitted to travel to the U.S. under the injunction, including: a person who wishes to enter the U.S. to visit a family member, such as a wife or mother-in-law; students admitted to schools in the U.S.; workers who have accepted an offer of employment from a U.S. organization; a lecturer invited to speak to an American audience or a refugee with a bona fide relationship with a U.S. entity.
But it’s also important to analyze what the Supreme Court did not say. And it did it not limit the scope of the injunction to a “parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US.” Nor did it exclude grandparents, nieces, nephews or fiancés as the U.S. Department of State seems to have done. If the Supreme Court wanted the injunction so limited, the language of the decision would have spelled it out more clearly. The vagueness of the language allows for a broader interpretation than what the Trump administration has promulgated — and must be litigated.
Moreover, under what authority or expertise does the Trump administration presume to unilaterally decide what constitutes a close familial relationship?
For an administration that claims to cherish family values, they sure limit it for citizens of the 6 Muslim majority countries.
Despite Trump’s boasts of clear victory earlier this week, the Supreme Court’s decision essentially rebuked the President by upholding a significant portion of the injunction against his Travel Ban. Mr. Trump may not like that the Supreme Court allowed for the entry people from the 6 countries who can show a “credible claim of a bona fide relationship with a person or entity in the United States.” But he must respect it. By unilaterally and arbitrarily excluding certain family members from the scope of the nationwide injunction the administration has invited yet more litigation to force the President to uphold the letter and spirit of the Supreme Court’s ruling.