On Monday, the Supreme Court held that the administration must not enforce its Travel Ban Executive Order against foreign nationals who have “a credible claim” of a “close familial relationship” with “a person … in the United States.” On Wednesday, the Trump Administration stipulated in Guidance to all U.S. embassies that “close family” does not include grandparents, fiancés, aunts and uncles, or other extended family. It is no easy matter to know where exactly the Supreme Court expected the government to draw the line. In fact, Justice Thomas’s dissent criticized the per curiam’s decision for just that reason. But the line the State Department has drawn is very difficult to sustain. It denies access to the injunction to many Americans who would face potentially legally cognizable hardships if their loved ones were excluded; and it appears to do so by analogizing to provisions of immigration law that the Court’s decisions, in the travel ban litigation and elsewhere, make plain cannot supply the right framework.
Before getting even close to the legal weeds, let’s be clear about what the new Guidance means: A grandmother can now be barred under the travel ban from coming to care for her newborn grandchild; their relationship is deemed insufficient. But if a family seeks to hire an au pair to care for the same child, the au pair is explicitly exempted from the travel ban and permitted to enter. It is extremely strange–particularly in light of the path that the litigation has taken–that the injunction as applied will now privilege labor market relationships over familial relationships.
But putting that to one side and focusing on the implications of State Department’s cable for family members, here is the definition in the Guidance at the heart of this matter:
“Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.
As you can see, the government defines eligibility mostly in terms of nuclear family units and excludes extended family. It is true that this grouping is largely consistent in one respect with the Immigration and Naturalization Act. The immigration code has, for decades, been highly restrictive about what kinds of family relationships are sufficient to make people eligible for special immigration benefits. Under the code, a U.S. citizen who wants to sponsor a family member for a green card is limited to sponsoring their own spouse, parents, children, or siblings. Grandparents and grandkids, nieces and nephews, aunties and uncles are all out. The rules are even more restrictive for legal permanent residents in the United States: they can’t even sponsor their siblings.
In a background briefing on Thursday, the government repeatedly referred to this definition. But there are several reasons why the immigration provisions that define family in this restrictive way should not serve as a basis for implementing the Supreme Court order.
First, the Court itself clearly drew the category of individuals more broadly. In terms of the foreign national, the Court expressly said the government must not bar all extended family members (see Census Bureau definition). The Court wrote, “Dr. Elshikh’s mother-in-law, clearly has such a relationship.” In other words, the Court treated mother-in-laws as clearly “close family” even though they do not count as family under the immigration provisions described above. In fact, for the Court it wasn’t even a close call–she “clearly” had a sufficient relationship.
Moreover, in terms of the family members inside the United States, the Court appears to have drawn a circle much broader than the green card sponsorship provision. That provision gives only U.S. citizens and green card holders the power to sponsor family members who are abroad. Yet the Court quite explicitly, and expansively, concluded that the injunction should apply whenever “a person … in the United States” had a close family relationship with someone abroad. (This is not surprising, as people inside the United States have constitutional rights and standing to bring a case to court even if they are not citizens or legal permanent residents.) The message the Court sent the government was clear. And it mixes apples and potatoes to refer to the Immigration and Naturalization Act provisions to construe what the Court meant.
Second, a central reason the immigration code sharply restricts the set of overseas family members entitled to green cards is because of the enormous benefit that status entails. There is, however, no equivalent reason to restrict someone’s ability to visit the country for a short stay— for example, to help take care of a newborn grandchild or to seek family care in the final months of life. And, in fact, existing immigration law does not deny entry for these purposes. Extended family members such as grandparents may still come visit, as tourists or through other channels of admission.
What the Trump administration has accomplished through the Guidelines is importantly different. It bars these people completely (unless for some reason they have a bona fide relationship to an American business entity). It is understandable why the government would draw a narrow circle around the class of people eligible for a path to U.S. citizenship. That simply cannot serve as the same basis for where to draw the line used to decide who will be categorically excluded from setting foot in the United States.
Third, and indeed most important, the State Department’s line-drawing appears to ignore altogether the reasons that the Supreme Court gave for staying the injunction only against the travel ban’s application to “foreign nationals abroad who have no connection to the United States at all.” As the Court explained, it upheld the injunction for the plaintiffs–and other similarly situated people–because they may suffer a “legally relevant hardship” when their loved ones are excluded as a result of the travel ban. In other words, only where the Court questioned whether any plaintiff would suffer a relevant legal hardship did the Justices permit the travel ban to go forward.
But the State Department’s definition of family bears no relationship to this underlying idea. In myriad ways, constitutional law recognizes that people can be injured in a legally cognizable manner when the law impinges on their relationships with extended family—relatives well beyond their immediate nuclear family. Here’s just one example: in Moore v City of East Cleveland, the Supreme Court struck down a zoning ordinance that prohibited a grandmother from living with her grandchild. The Court wrote powerfully:
“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”
Cases like Moore provide a highly important key to understanding what exactly the Court on Monday must have meant by a “close familial relationship.” In describing the relationship of grandparents and other relatives who may come to occupy a home, the Court in Moore said: “it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home.” When lower courts now turn to assessing the government’s method of implementing the Supreme Court order with respect to their injunctions, they will best be guided by what the Court has said across these cases.