The United States Court of Appeals for the Ninth Circuit handed the government a(nother) resounding defeat last week.
In March 2017, the Administration issued its second Executive Order that would have banned all travelers from six Muslim-majority countries and "paused" refugee processing through October 2017. The legal merits of the Executive Order will not be addressed by the United States Supreme Court until October 10. However, in an interim ruling in June, the Supreme Court determined that the Executive Order’s ban could not apply to those refugees (and those travelers from the six identified countries) with "a credible claim of a bona fide relationship" with a person or entity in the United States.
The Court ruled that "close familial" relationships did qualify as bona fide, as did relationships that were "formal, documented, and formed in the ordinary course." Nevertheless, the Administration sought to interpret these parameters very narrowly. The Administration’s approach was rejected by a District Court and the 9th Circuit was asked to decide: 1) which familial members were sufficiently close to permit admission; and 2) whether a refugee's "assurance" from a U.S. resettlement agency constituted a sufficiently formal relationship to permit admission.
With respect to family relationships, the 9th Circuit found that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States did have a "bona fide" relationship. (This is in addition to the parents-in-law, spouses, fiancés, children, adult sons and daughters, sons- and daughters-in-law, siblings, and step relationships that the Administration had already acknowledged were bona fide relationships.) The 9th Circuit similarly found that formal "assurances" from resettlement agencies (currently held by some 24,000 people) also created a bona fide relationship.
The mandate of the 9th Circuit will take effect in 5 days -- rather than the typical 52 -- and should permit refugee flow for some period.
The Multifaith Alliance for Syrian Refugees salutes the 9th Circuit Court of Appeals for its thoughtful decision in favor of the people and values that have shaped America.
Update (9/11/17): Today, the United States government appealed last week's ruling by the U.S. Court of Appeals for the Ninth Circuit which would have permitted those 24,000 refugees with "assurances" from U.S. resettlement agencies to enter the country despite the current 120-day pause to refugee admission imposed by Executive Order last March. The Ninth Circuit Mandate would have taken effect tomorrow, September 12. The U.S. Supreme Court has issued a temporary stay of that Order, pending its decision on how to address this matter.
An "assurance" from a U.S. resettlement agency is a commitment to the federal government to provide resettlement and related services to a particular refugee when that refugee arrives in this country. The Ninth Circuit concluded that these relationships were sufficiently "formal, documented, and formed in the ordinary course" to satisfy the "bona fide relationship" test the US Supreme Court had required for refugee admission during the pause.
The Ninth Circuit also expanded the definition of "close familial relationships" to embrace a much broader circle of relatives than had the government, thus permitting exemption from the pause. The Administration, while disagreeing, did not contest that portion of the Ninth Circuit Order and it will take effect.
The U.S. Supreme Court will hear argument on the legal merits of the "travel ban" on October 10. In the interim, it will sort out how to handle this newest challenge.