Hawaii federal district Judge Derrick K. Watson issued an order yesterday, which largely grants the State of Hawaii and Dr. Ismail Elshikh’s motion to enforce, or in the alternative, to modify the preliminary injunction, filed July 7 in Hawaii v. Trump.

On June 26, 2017, the United States Supreme Court issued an order in this case that the travel ban could 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, including those with a “close familial relationship.” The same standard applies with respect to refugee admissions. The federal government subsequently issued guidance that such “close familial relationships” did not include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States.

Judge Watson’s order notes that “context matters” and:

“[W]hen appropriately considered in the context of the June 26 order, the Government’s narrowly defined list finds no support in the careful language of the Supreme Court or even in the immigration statutes on which the Government relies.

“[T]he Government’s utilization of the specific, family-based visa provisions of the [Immigration and Nationality Act] … constitutes cherry-picking and resulted in a predetermined and unduly restrictive reading of ‘close familial relationship.’ Other, equally relevant federal immigration statutes define a close family in a much broader manner.

“In sum, the Government’s definition of ‘close familial relationship’ is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it. Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”

Hawaii Attorney General Douglas S. Chin said, “The federal court today makes clear that the U.S. Government may not ignore the scope of the partial travel ban as it sees fit. Family members have been separated and real people have suffered enough. Courts have found that this Executive Order has no basis in stopping terrorism and is just a pretext for illegal and unconstitutional discrimination. We will continue preparing for arguments before the U.S. Supreme Court in October.”

Judge Watson’s order also notes that contrary to the Trump Administration’s arguments, “[n]othing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of [the Executive Order]. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones … [b]ona fide does not get any more bona fide than that.”

A copy of Judge Watson’s order is provided here.

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