The writer EM Forster said “one must be fond of people and trust them if one is not to make a mess of life.” Very little about President Trump’s executive order travel ban is fond of people. Indeed, the instructions accompanying the Supreme Court’s partial lifting of the injunction on the travel ban are as complex in detail and as inviting of invidious and discretionary disaster as anyone can contemplate in the law. Here is a very brief sample from an otherwise very long document:
‘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. A relationship with a ‘U.S. entity’ must be formal, documented, and formed in the ordinary course rather than for the purpose of evading the E.O. A consular officer should not issue a visa unless the officer is satisfied that the applicant’s relationship complies with these requirements and was not formed for the purpose of evading the E.O. For example, an eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption. Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States. Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt. In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.: for example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their inclusion in the E.O. Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States. When issuing an IV or an NIV to an individual who falls into one of the categories listed in paragraph 10, the visa should be annotated to state, ‘Exempt or Waived from E.O. 13780.’ Interviewing officers must also enter a clear case note stating the specific reason why the applicant is exempt from the E.O.’s suspension of entry. If consular officers are unclear if an applicant qualifies for an exemption, the cases should be refused under INA 221(g) and the consular officer should request an advisory opinion from VO/L/A following current guidance in 9 FAM 304.3-1.
Is this a good faith attempt to comply with the Supreme Court’s per curiam ruling, which it must be remembered, is not on the underlying merits or substance but merely a few words accompanying the scheduling of the case for argument in October?
One would have to say “yes, It is a good faith effort,” but to say it with any certainty one would have to spend hours, if not days of study. If you’re talking about the administration of the guidance document in the midst of a chaotic airport or transit hub where people are speaking different languages and arriving from different points on the globe and where the lines of humanity seemingly demand immediate attention, the likelihood of this guidance being implemented evenhandedly and with fairness disappears into the mist.
I am left wondering why the Supreme Court would give this ruling.
It seems to me that what the court was saying was that the office of the president would normally command the deference of this court, especially in matters of immigration and foreign affairs. But the history of this matter does not inspire such deference. Instead, it prompts the court to say something along the following lines: We cannot say at this moment, nor are we willing to invest the time to ascertain whether there is any authority for the president of the United States to have delayed the entry from six particular countries and refugees altogether in order to study whether the vetting or clearance operations are sufficient. Insofar as the executive orders that have been presented to the lower courts and now to us at the Supreme Court reflect a bluntness and ignorance of nuance, we are left in a position of having to rule against appropriate presidential discretion. Rather than do that in its entirety, we give as a fig leaf the proposition that the president may exclude, if he must, those without a bona fide relationship to our Republic.
Naturally, we leave to others the definition of a bona fide relationship beyond a few examples of employment family and university which we have supplied. Certainly, we are not opining that grandparents would not fit within a bona fide family relationship forwith someone seeking entry. That, Mr. Pres. Trump, seeing that you have done so, suggests to us that you are an intrepid man willing to accept the disapproval of grandparents worldwide who we think will be left miffed that their relationship has been defined as too distant for the law to allow.
So is the executive order being appropriately implemented by this State Department guidance?
To appropriately implement an unnecessary act that causes the level of delay administrative costs and hardship that this order does is impossible to applaud. I commend those who have given their hard work and career expertise to try to give the president time to study and tighten if necessary the vetting of applicants for entry. Of course he’s had every moment of his presidency to have accomplished this task already without waiting for final judicial determination, and we can only hope he gets it done over the summer so that the word MOOT can be promptly appended to that which he has imposed upon the world without reason. To those in law school in need of employment, we say look no further than immigration practice since this president is indeed making your life great again, unfortunately it is at the price of the misery of so many thousands of other lives “Yearning to breathe free.”