June 29, 2017 at 9:52 PM
by Carol Morello
After five months of bitter legal squabbling, the Trump administration's modified travel ban took effect Thursday night under new guidelines designed to avert the chaos of the original rollout. But the rules will still keep many families split and are likely to spawn a new round of court fights.
The State Department on Thursday announced new criteria to determine who will be allowed to enter the United States as a visitor or a refugee. The travel restrictions are temporary for now — 90 days for visitors and 120 days for refugees coming from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. But the administration took a particularly strict interpretation of a Supreme Court ruling Monday that only those with "bona fide" relationships, such as close family members, can enter the country.
The administration's new rules do not allow grandparents, grandchildren, uncles, aunts, cousins and fiances. They do allow sons-in-law, daughters-in-law and stepchildren.
Advocates and lawyers criticized the family list as capricious.
"The president is supposed to protect American families, not rip them apart," said Shayan Modarres, a lawyer with the National Iranian American Council.
The effect of the travel ban this time may be more muted compared with the effort in January, but the restrictions are still broad. Citizens of the six targeted countries will be denied visas unless they can prove a close family relationship or a connection with a school or business.
Late Thursday, lawyers for the state of Hawaii asked a federal judge to stop the government from enforcing the ban.
In a court filing, the lawyers argued that fiances, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of those in the United States should be allowed to enter from the six affected countries, as they could credibly claim connections to America.
The lawyers also argued that the government should not be allowed to bar refugees "who already have a documented agreement with a local sponsor and a place to live."
"The Government does not have discretion to ignore the Court's injunction as it sees fit," the lawyers wrote. "The State of Hawaii is entitled to the enforcement of the injunction that it has successfully defended, in large part, up to the Supreme Court — one that protects the State's residents and their loved ones from an illegal and unconstitutional Executive Order."
A long set of instructions was sent via cable Wednesday to diplomatic posts worldwide, and took effect at 8 p.m. Eastern time Thursday. Senior administration officials said the timing would allow everything to go smoothly without the turmoil that greeted the original travel ban, which was imposed with no notice in an executive order earlier this year, putting some travelers in limbo when the rules changed while they were in midflight. Nevertheless, some advocates and immigration lawyers were at airports on the East and West coasts to observe the ban's implementation.
"It will be business as usual for us," said a senior U.S. official, speaking on the condition of anonymity to outline the changes. "We expect things to run smoothly, and our people are well-prepared for this and they will handle the entry of people with visas professionally, respectfully and responsibly, as they have always done, with an eye toward ensuring that the country is protected from persons looking to travel here to do harm."
State Department spokeswoman Heather Nauert defended the restrictions as a way to assure Americans that foreign visitors and refugees are not coming to harm them.
"The American public could have legitimate concerns about their safety when we open our doors," she said, "and we open our doors to people who go through proper screening measures and who want to be here and be productive members of society."
Still, some administration officials struggled to explain why the ban was justified or how it will make Americans safer, because no visitors or refugees from any of the six countries listed in the travel ban have ever been arrested in connection with a terrorist attack on U.S. soil. When asked during a briefing with reporters, several officials said they were following the guidelines interpreted by lawyers from a Supreme Court decision allowing the travel ban to go ahead, with some limitations, until the case can be argued before the court in October.
Human rights groups criticized the ban and suggested that more legal battles are to come.
"It remains clear that President Trump's purpose is to disparage and condemn Muslims," said Omar Jadwat, director of the American Civil Liberties Union's Immigrants' Rights Project. "The reported guidance does not comport with the Supreme Court's order, is arbitrary and is not tied to any legitimate government purpose."
The new rules apply to refugees as well as visitors. But the number of refugees who can be admitted is already nearing an end, three months short of the end of the fiscal year. Fewer than 1,000 spots are available before the 50,000 limit Trump set in January is reached. By comparison, the Obama administration had set the limit at 110,000. Refugees with flights booked by July 6 should encounter no problems, and after that, the State Department hopes to have a better idea of how to proceed.
Even after the limit is reached, however, refugees with close family members in the United States will be allowed entry. More than half of all U.S.-bound refugees typically have some family members in the United States, although in some cases the relatives may be in the excluded category.
Senior administration officials said they drew up the list of close relationships based on the definition of family in the Immigration and Nationality Act of 1965.
The relatives deemed sufficiently close family members to exempt people from the travel ban, whether as visitors or refugees, are: a parent, spouse, child, an adult son or daughter, son-in-law, daughter-in-law or sibling, as well as their stepfamily counterparts.
There may be some wiggle room to accommodate special cases, such as a grandmother or uncle who raised someone now living in the United States.
"If they don't have the requisite family relationship, if they would like to articulate a reason that we should nevertheless waive the inadmissibility, they are certainly welcome to articulate that reason to us," a senior administration official said. "And we will look at those cases case by case, but it won't be the relationship that will be the determining factor."
The administration insisted that it will reject any claims by resettlement agencies that they have a bona fide relationship with a refugee, as some have said they would do. The advisory cable sent to consular officials Wednesday said that any relationship "must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading" the executive order.
Stephen Yale-Loehr, a professor at Cornell University Law School, who has written volumes of books on immigration law, said the travel ban would have barred many refugees who came to the United States years ago and have caused no problems. Among them are the Lost Boys of Sudan and children orphaned by famine and war.
"Similarly, why can a stepsister visit the United States but not a grandmother?" he asked. "The State Department should vet visa applicants on a case-by-case basis for terrorism concerns, not impose overly broad categories that prevent innocent people from coming to this country," he said.
Amnesty International called on Congress to overturn the travel ban and said it dispatched monitors to airports to observe whether anyone was being denied entry.
"Separating families based on these definitions is simply heartless," Naureen Shah, director of campaigns for Amnesty International USA, said in a statement. "It further proves the callous and discriminatory nature of Trump's Muslim ban."
Matt Zapotosky contributed to this report.