Hawaii asks federal judge to clarify scope as limited travel ban goes into effect

Attorney General Doug Chin and representatives from the Muslim Association of Hawaii, ACLU, Japanese American Citizens League, Friends of Civil Rights, and Amnesty International held a news conference to discuss the partial Trump travel ban taking effect and the request to the Hawaii federal district court to clarify the new scope of the injunction against the travel ban.

The State of Hawaii asked federal district Judge Derrick K. Watson Thursday to clarify the scope of the travel and refugee bans in Hawaii v. Trump in light of Monday’s ruling from the United States Supreme Court.

The request comes as a scaled-back version of President Donald Trump’s travel ban took effect at 2 p.m. HST, stripped of provisions that brought protests and chaos at airports worldwide in January yet still likely to generate a new round of court fights.

The new rules, the product of months of legal wrangling, aren’t so much an outright ban as a tightening of already-tough visa policies affecting citizens from six Muslim-majority countries. Refugees are covered, too.

Under the temporary rules, citizens of Syria, Sudan, Somalia, Libya, Iran and Yemen who already have visas will be allowed into the United States. But people from those countries who want new visas will now have to prove a close family relationship or an existing relationship with an entity like a school or business in the U.S.

The problem, Hawaii argues, is in the definition of what the State Department considers “a bona fide personal relationship.”

According to guidelines that were issued in a cable sent to all U.S. embassies and consulates late Wednesday, that includes a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling. It does not, however, apply to grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiancés or other extended family members.

(UPDATE: Per the Associated Press, the Trump administration has apparently altered its definition of a “bona fide” relationship, adding fiancés of people in the U.S. to its list of people who are exempt from its travel ban.)

Attorney General Chin said, “In Hawaii, ‘close family’ includes many of the people that the federal government decided on its own to exclude from that definition. Unfortunately, this severely limited definition may be in violation of the Supreme Court ruling.”

The motion also states that lawyers for the plaintiffs in both lawsuits, after the Supreme Court ruling, repeatedly asked the Trump administration to indicate how it intended to implement the bans. The federal government did not respond until the information was publicly posted, hours before the partial bans were set to go into effect.

Hawaii’s motion states in part:

“Hours ago, after days of stonewalling Plaintiffs’ repeated requests for information, the Government announced that it intended to violate the Supreme Court’s instruction. Beginning at 8:00 p.m. EST, it will apply the Executive Order to exclude a host of aliens with a “close familial relationship” to U.S. persons, including grandparents and grandchildren, brothers- and sisters-in-law, fiancés, aunts, uncles, nieces, nephews, and cousins. The Government will also exclude refugees who have a “bona fide relationship” with a U.S. resettlement agency—including refugees who already have a documented agreement with a local sponsor, and a place to live. And despite the Supreme Court’s claim that a foreign national cannot be blocked by the Order if he or she “credibl[y] claim[s]” a bona fide relationship with a U.S. person, the Government has instructed consulates to deny aliens entry whenever they are “unsure” if such a connection exists.

“The Government does not have discretion to ignore the Court’s injunction as it sees fit. The State of Hawaii is entitled to the enforcement of the injunction that it has successfully defended, in large part, up to the Supreme Court—one that protects the State’s residents and their loved ones from an illegal and unconstitutional Executive Order.”

Click here to view the full motion, as well as a memo in support of the motion.

As far as business or professional links are concerned, the State Department said, a legitimate relationship must be “formal, documented and formed in the ordinary course rather than for the purpose of evading” the ban. Journalists, students, workers or lecturers who have valid invitations or employment contracts in the U.S. would be exempt from the ban.

The exemption does not apply to those who seek a relationship with an American business or educational institution purely for the purpose of avoiding the rules. A hotel reservation or car rental contract, even if it was pre-paid, would also not count, it said.

Much of the confusion in January, when Trump’s first ban took effect, resulted from travelers with previously approved visas being kept off flights or barred entry on arrival in the United States. Immigration officials were instructed Thursday not to block anyone with valid travel documents and otherwise eligible to visit the United States.

Karen Tumlin, legal director of the National Immigration Law Center, said the rules “would slam the door shut on so many who have waited for months or years to be reunited with their families.

Trump, who made a tough approach to immigration a cornerstone of his election campaign, issued a ban on travelers from the six countries, plus Iraq, shortly after taking office in January. His order also blocked refugees from any country.

Trump said these were temporary measures needed to prevent terrorism until vetting procedures could be reviewed. Opponents noted that visa and refugee vetting were already strict and said there was no evidence that refugees or citizens of those six countries posed a threat. They saw the ban as part of Trump’s campaign promise to bar Muslims from entering the United States.

Lower courts blocked the initial ban and a second, revised Trump order intended to overcome legal hurdles. The Supreme Court on Monday partially reinstated the revised ban but offered only broad guidelines for exempted travelers.

The U.S. has almost filled its quota of 50,000 refugees for the budget year ending in September and the new rules won’t apply to the few remaining slots. With the Supreme Court set to consider the overall ban in October, the rules could change again.

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