One day after U.S. District Judge Derrick Watson denied the state of Hawaii’s motion to broaden the definition of “bona fide relationship” for refugees and visa applicants affected by Executive Order 13780, the Ninth Circuit Court of Appeals followed suit.
In its June 26 decision, the Supreme Court let stand the temporary travel and refugee ban contained in that executive order but added that the ban would not apply to refugees and visa applicants with a “bona fide relationship” to an American resident.
The Trump administration quickly defined “bona fide relationship” as parent, child, sibling, spouse or fiance. The state of Hawaii wants a broader definition that would include grandparents, aunts, uncles, cousins, and possibly more distant relations.
Late Friday, the Ninth Circuit said no to Hawaii’s request for an emergency appeal of Judge Watson’s denial, saying it lacked jurisdiction to hear the appeal.
But the liberal judges on the panel could not resist giving Hawaii a road map to get what they want.
The Ninth Circuit ruled that Hawaii should have asked Judge Watson to modify his previous injunction halting the Executive Order on March 15 (partially overturned by the Supreme Court on June 26) instead of asking for him to “clarify” the Supreme Court’s decision.
In order to obtain a temporary partial victory in the matter, the state of Hawaii could now appeal the current 9th Circuit decision directly to the Supreme Court–which could issue a ruling even though it is not in session if Justice Kennedy, who has that authority, chooses to act alone on behalf of SCOTUS.
Each court of appeals is under the supervision of a justice. Kennedy is the circuit justice for the Ninth Circuit. One of the things a circuit justice can do solo is to stay any appellate decision from his circuit.
Alternatively, it could follow the Ninth Circuit’s advice, file a new motion with Judge Watson, and hope for a favorable ruling, which would likely be appealed by the Department of Justice to the Ninth Circuit, whose ruling would be appealed to the Supreme Court again by the losing party.
Meanwhile, the Los Angeles Times reports: “Refugee resettlement agencies say the State Department has given them updated instructions on President Trump’s travel ban that extends the cutoff date for refugee admissions.”
When the ban was put into place last week, the administration said refugees who had booked travel would be admitted through Thursday. After that, immigration officials would block all refugees, except those who could prove they had U.S. connections, such as close relatives.
The July 6 date was a government estimate of when the country would reach a 50,000-person cap on refugee admissions this fiscal year. Federal officials now estimate that the cap will be hit a week later, according to refugee groups. State Department figures show that 49,225 refugees had arrived in the U.S. as of June 30.
A spokeswoman for the Bureau of Population, Refugees and Migration at the State Department would not confirm the change and said more information would come out Thursday.
HIAS, one of the largest refugee resettlement agencies in the country and a plaintiff in the related IRAP v. Trump case that was also decided on March 15 and consolidated with the Hawaii v. Trump case that was wrapped into the June 26 Supreme Court decision, is aggressively seeking more refugees despite the Supreme Court ruling.
“The cap could be hit earlier, so it could be earlier than July 12,” Mark Hetfield, the Chief Executive Officer of HIAS (formerly the Hebrew Immigrant Aid Society) told The Times.
The number of refugees arriving in the United States plummeted in the first week following the June 26 Supreme Court decision, though the subsequent four days between July 4 and July 7 saw the number of refugees increase by 578, which is about the daily rate seen in the previous eight weeks.
As of Saturday morning, July 8, according to the State Department website, 49,803 refugees have been admitted to the United States in FY 2017, which is 197 below the 50,000 ceiling President Trump set in Executive Order 13780.
At the current rate of refugee arrivals, that 50,000 ceiling will likely be reached on either Monday, July 10 or Tuesday, July 11.