By Matt Zapotosky,
A federal appeals court panel late Friday declined to involve itself in the latest dispute over President Trump’s travel ban, meaning, at least for now, grandparents and other extended relatives of people in the United States cannot be exempted from the president’s executive order.
The ruling from a three-judge panel for the U.S. Court of Appeals for the 9th Circuit is another blow to those who have challenged enforcement of the ban in the wake of a Supreme Court ruling that lifted earlier freezes of it.
The appeals court judges, though, did not address the merits of the challengers’ claims, but rather said they did not have jurisdiction to weigh in on the matter. The judges — Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez, all Clinton appointees — were the same ones that had earlier ruled against Trump and upheld a freeze on his ban. Trump has been critical of their ruling.
It is unclear what might happen next. The appeals court judges seemed to suggest that while they could not get involved, the state of Hawaii, which is challenging the ban, could go back to a lower court judge. That judge, Derrick Watson, had on Thursday rebuffed a similar request, saying the matter should be taken up with the Supreme Court.
In a statement, Hawaii Attorney General Douglas S. Chin said the ruling “makes clear that Judge Watson does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction.”
“We appreciate the Ninth Circuit for ruling so quickly and will comply,” Chin said.
At issue is how far the administration can go in keeping relatives of U.S. people out under the president’s travel ban, which bars the issuance of new visas to residents of six Muslim majority countries.
The Supreme Court had ruled late last month that the government could begin enforcing the measure, but not on those with “a credible claim of a bona fide relationship” with a person or entity in the United States.
The court offered only limited guidance on what type of relationship would qualify. “Close familial” relationships would count, the court said, as would ties such as a job offer or school acceptance letter that were “formal, documented, and formed in the ordinary course.”
The government put the measure into effect on June 29, suspending the refugee program and barring the issuance of new visas to residents of Iran, Somalia, Sudan, Libya, Yemen and Syria without U.S. connections. Among family members, officials drew lines.
The administration said it would let into the United States from the six affected countries parents, parents-in-law, siblings, spouses, children, sons and daughters and sons-in-law and daughters-in-law of those already here. (Officials initially wanted to keep out fiances, but later relented.)
Still banned, though, were grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law. And the administration also said it would keep out refugees that had a formal assurance from a resettlement agency.
Hawaii first went to Watson, asking him to clarify that such people could not be blocked. Watson wrote that he would not “usurp the prerogative of the Supreme Court,” and if those suing over the ban wanted relief, they should take their claims there. The state then asked the 9th Circuit Court of Appeals to get involved and bar the government from enforcing the measure as it has been.
“These actions are grossly unlawful, and they inflict ongoing and irreparable harm to persons in the United States whose relatives and associates are being denied entry to this country each day,” lawyers for the state wrote in a filing Friday.
Without even hearing from the government, the appeals court judges ruled that Watson’s order “neither resulted in a final judgment nor engaged in action deemed immediately appealable,” and they thus lacked jurisdiction to get involved themselves. But they seemed to give Hawaii a path forward, if the state merely styled its request to Watson not as a request for clarity, but as a call to enforce the Supreme Court’s order.
“Finally, we note that although the district court may not have authority to clarify an order of the Supreme Court, it does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction,” the judges wrote. “But Plaintiffs’ motion before the district court was clear: it sought clarification of the Supreme Court’s June 26 order, not injunctive relief. Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.”