Border and Enforcement News

Posted on: August 9th, 2017
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Siskind Summary – Section by Section Review of the RAISE Act

This morning, Senators Tom Cotton and Sonny Perdue introduced their bill to dramatically alter the immigration system. They unveiled the bill at the White House along with the endorsement of President Trump for their bill. The bill would cut immigration in a way the country hasn’t seen in nearly a century. Family immigration numbers would be cut to the bone and people waiting for years in line would potentially have to start all over. The bill likely has no chance of moving in Congress, fortunately.

 

Section 1. The bill is to be referred to as the ‘‘Reforming American Immigration for a Strong Economy Act’’ or the ‘‘RAISE Act’’.

Section 2. ELIMINATION OF DIVERSITY VISA PROGRAM.

The Diversity Visa program is eliminated. This takes effect on the first day of the fiscal year that begins after the legislation is enacted.

 

Section. 3. ANNUAL ADMISSION OF REFUGEES.

Limits refugee admissions to 50,000 per year. The INA set a limit of 50,000 in the early 1980s for three years, but since then, the INA has permitted the President to set the level.

 

Section. 4. FAMILY-SPONSORED IMMIGRATION PRIORITIES.

Changes the definition of a “child” for immediate relative sponsorship to 18 from 21. This means US citizens sponsoring children no longer get the benefit of quota free sponsorship if a child turns 18.

Parents are no longer considered immediate relatives for family immigration purposes.

The worldwide family quota is cut from 480,000 to 88,000 minus the number of people paroled in to the US under 212(d)(5) who have not departed the US within 365 days and have not received a green card within two years of getting parole status. This presumably will eat up all of the 88,000 numbers meaning only immediate relatives (spouses and children under 18 of US citizens) will be able to immigrate (though I am not sure the number of parolees is available to determine the likely impact of this provision).

The system will work somewhat differently than now. Currently, the 480,000 is the starting number for the four preference categories for family cases. Immediate relative numbers are subtracted from the 480,000 and then the remaining numbers are divided according the allotments in each preference category. Under the proposed system, there will be 88,000 with parolee numbers subtracted, but not immediate relatives. My educated guess is this will still represent the virtual elimination of all the categories except immediate relatives and immediate relative numbers will be dramatically reduced as well because of the changed definition of who can qualify.

All other family immigration categories except spouses and minor children of permanent residents are eliminated. That includes F-1 adult single children of US citizens, F-2 adult children of permanent residents, F-3 adult married children of US citizens and F-4 siblings of US citizens.

To the extent any family green card numbers are left, 75% of the numbers are not subject to per country limits.

Parents of US citizens will be eligible for a “W” non-immigrant visa for up to five years with the possibility of extending if the citizen child continues to reside in the US. Parents will not be eligible to be employed or eligible for any public benefits. The child must prove he or she has arranged for the parent to get health insurance at no cost to the parent.

The provisions of this section will take effect on the first day of the fiscal year that begins after the legislation is enacted.

Pending applications in eliminated categories are voided except for ones for people scheduled to get green cared within one year and entry to the US must happen within a year of the bill’s enactment.

 

Section 5. REPLACEMENT OF EMPLOYMENT-BASED IMMIGRATION CATEGORIES WITH IMMIGRATION POINTS SYSTEM.

Employment-based numbers are to be divided with a limit of 50% being available in each six month period (this sounds similar to the H-2B where half are allocated for each half of the fiscal year).

The worldwide quota remains at 140,000 (the number currently available per year in the EB-1, EB-2, EB-3 and EB-4 categories.

Spouses and children are included in the 140,000 quota (i.e. kids and spouses reduce the number of total green cards available to high-skilled workers).

Per country quotas no longer apply (though backlogs are not likely to go away – see below).

Points-based green card applications will be submitted to USCIS online. The filing fee will be $160 (which will adjust for inflation) and USCIS will describe what documentation will be needed for applying.

Tie-breaking factors –

  1. education doctoral degrees > professional degrees > masters degrees > bachelor’s degrees > high school degrees
  1. if the educational level is the same, then English skills are the tie-breaker.
  1. if English test scores are the same, then the person closer to 25 wins.

Applicants who apply will remain in the eligibility pool for 12 months and then will have to reapply.

Every six months, the USCIS Director will invite the top-ranked people to file a green card application. The number invited will be the estimate of how many will yield 50% use of the available green card numbers. Applicants will have 90 days to file immigrant visa applications after this. Proof of points eligibility will be submitted as well as proof an employer is providing health insurance. The filing fee for the immigrant visa is $345 (which will adjust for inflation).

If more applications are received than available in the annual allotment, then the visa will given an immigrant visa, will have the number pulled from the next fiscal year and admission is to be delayed until the next fiscal year.

Adult children who are unable to care for themselves may enter with their parents on a temporary visa.

Points-based immigrant visa recipients are ineligible for public benefits for five years (which is the current law, incidentally, for all green card recipients).

To be eligible to apply in the points system, applicants must have at least 20 points.

Points for age –

  • 0-17 years – no points
  • 18-21 years – 6 points
  • 22-25 years – 8 points
  • 26-30 years – 10 points
  • 31-35 years – 8 points
  • 36-40 years – 6 points
  • 41-45 years – 4 points
  • 46-50 years – 2 points
  • 51 and over – no points

 

Education highest level obtained

  • US or foreign high school degree – 1 point
  • Foreign bachelor’s degree – 5 points
  • US bachelor’s degree – 6 points
  • Foreign master’s degree in a STEM (science, technology, engineering and math) field – 7 points
  • US master’s in STEM field – 8 points
  • Foreign professional degree or doctorate in STEM field – 10 points
  • US professional degree or doctorate in STEM field – 13 points

 

English-language proficiency

Points allocated from 0 to 12 points based on test scores

 

Extraordinary achievement

Nobel prize or “comparable recognition” – 25 points

Olympic medal or placed first in an international sporting event in which the best athletes in an Olympic sport were represented – 15 points

Note that there are no points for extraordinary ability in the arts, education, business or other categories

 

Job offer

Applicant has a job offer that pays 150-200% of median salary in the state where the job is located – 5 points

Applicant has a job offer that pays 200-300% of median salary in the state where the job is located – 8 points

Applicant has a job offer that pays 300+% of median salary in the state where the job is located – 13 points

Applicants who don’t have at least a bachelor’s degree and score points based on a job offer are ineligible for points-based green cards.

 

Investment in a new commercial enterprise

$1,350,000 investment – 6 points if the applicant invests this amount and maintains the investment for at least 3 years and plays an active role in the management of the business as the applicant’s primary occupation.

$1,800,000 investment – 12 points if the applicant invests this amount and maintains the investment for at least 3 years and plays an active role in the management of the business as the applicant’s primary occupation.

 

Family-based applicants eliminated from eligibility under the bill may potentially be eligible for two points for that reason

The number of points may be adjusted downward if the spouse would score a lower number (apparently wanting to reward couples where both are high scorers)

USCIS must issue statistical reports to Congress after the first year and then every year; an interagency report shall be issued every four years to determine needed changes in the point system

NOTE – There are no points categories for religious workers or for doctors working in underserved areas.

 

Section 6. PREREQUISITE FOR NATURALIZATION.

People who have not complied with an affidavit of support because the beneficiary received means-tested public benefits are ineligible to naturalize.

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CBP FAQs on the Visa Waiver Program Improvement and Terrorist Travel Prevention Act

United States Customs and Border Protection (CBP) has provided a list of frequently asked questions regarding augmentations made to the Visa Waiver Program and ESTA as a result of the Visa Waiver Program Improvement and Terrorist Prevention Act of 2015. Readers should note that the following text is CBP’s.

“What is the Visa Waiver Program?

The Visa Waiver Program (VWP) allows travelling for citizens from 38 countries to the United States for the purpose of business or tourism for up to 90 days without a visa. In reciprocation, the 38 countries must permit U.S. citizens and nationals to travel to their countries under the same circumstances. The VWP has shifted toward being a comprehensive security partnership with close American allies, since its implementation in 1986. The program employs a risk based philosophy to prevent the entry of terrorists and other dangerous criminals into the United States. This approach analyzes the impact participation in the VWP of each program country has on the national security of the United States, as well as in-depth assessment of an individual’s potential risk occurs before his or her departure, upon arrival, and during any travel within the United States.

How does VWP travel work? What is the Electronic System for Travel Authorization (ESTA)?

Anyone wishing to participate in the VWP is required to acquire pre-travel authorization from CPB’s ESTA system before attempting to travel to the United States. Citizens from participating countries can apply for this on CBP’s website. The system is used to determine eligibility for travel under the VWP without a visa to the United States, and while those who do not receive ESTA approval are not forbidden from travelling to the United States, they must go to the nearest U.S. Embassy or Consulate to apply for a visa before travelling to the United States.

What is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015? Why is it necessary to once again expand the amount of ESTA information being collected from VWP travelers?

On December 18, 2015, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 became law, establishing, among other things, new eligibility requirements for travel under the VWP. These new requirements do not prohibit travel to the U.S., but do mandate that a traveler who fails to meet the requirements and wants to travel to the United States obtain a visa, a process which commonly incorporates an in-person interview at a U.S. Embassy or Consulate. The Department of Homeland Security updated the ESTA application with supplemental questions which address the new eligibility requirements under the Act.

What are the new eligibility requirements for VWP travel?

According to the Act, travelers are no longer eligible to travel or be admitted to the U.S. without a waiver, under the VWP, if they fall into one of the following categories:

  • Nationals of VWP countries who have traveled to or been present in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen at any time on or after March 1, 2011 (with limited exceptions); and
  • Nationals of VWP countries who are also nationals of Iraq, Syria, Iran, or Sudan.

These restrictions are not applicable to VWP travelers who were in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen with the purpose of performing military service for the program country or with the purpose of being a full-time government employee for the program country. It is beneficial for individuals in those circumstances to bring appropriate documentation with them when they travel through a U.S. port of entry, but it should be noted that these exceptions do not apply to the restriction of dual nationals of one of the subject countries (“dual national restriction”). The overwhelming majority of VWP-eligible travelers will not be affected by this new Act, and new countries can possibly be added to the list at the discretion of the Secretary of Homeland Security.

Are there any exceptions or waivers to the new eligibility requirements?

Indeed, individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen for military or government business may fall into an established exception to the new eligibility requirements. Dual nationals from one of the subject countries, however, are ineligible for these exceptions. These waivers are received only on a case-by-case basis, and DHS retains the capability of waiving these travel-related VWP restrictions if it reaches the conclusion that such a waiver is in the best interest of law enforcement or national security of the United States.

What do I do if I fall under one of the VWP travel restrictions under the new Act?

While the restrictions do not prohibit travel to the United States, they do necessitate a visa from a U.S. Embassy or Consulate for travelers covered by the restrictions in the law. The wait times for visa interviews at the Embassies and Consulates in VWP partner countries are relatively short, and expedited visa appointments can be requested by individuals seeking a nonimmigrant visa after ESTA denial or revocation who have imminent travel for business, medical, or humanitarian purposes. There are a number of benefits that visas have over the ESTA. Visas are valid for 10 years, compared to ESTA having validity for only 2 years. Additionally, visas hold the capability of staying in the United States for six months at a time, compared to 90 days under the VWP, and furthermore, visa travelers are permitted to extend their stay beyond six months or attempt to change visa class while still in the united states, neither of which is permitted under the VWP.

What additional questions were added to the ESPA in February 2016?

The questions that were added or augmented were:

  • Have you traveled to, or been present in Iraq, Iran, or Sudan on or after March1, 2011?
  • Have you ever been issued a passport (or national identity card for travel) by any other country?
  • Are you now a citizen or national of any other country?
  • Have you ever been a citizen or national of any other country?

Based upon the applicants’ answers, they may be required to answer additional questions concerning travel to Iraq, Syria, Iran, and Sudan and potential dual nationality.

Are there other countries that I have traveled to that might impact VWP travel?

Yes, with the addition of Libya, Somalia, and Yemen as countries of concern, limiting VWP travel for certain individuals who traveled to these countries. DHS has continuing consultations with the Department of State and the Office of the Director of National Intelligence in determining whether other counties will be added to the list.

What was the additional question to the ESTA application in October 2016?

The following question was included by DHS in the ESTA application and Form I-94-W:

“Please enter information associated with your online presence – Provider/Platform – social media identifier.”

The question, distinctly marked as “optional” on the revised ESTA application, does not have to be answered by the applicant in order to submit the application, and an applicant’s failure to answer the question will not cause a negative interpretation or inference.

How will CBP use my social media information collected through the additional questions being added to the ESTA application in October 2016?

Any information found in social media will yield a more thorough vetting process and can be used to review ESTA applications to validate legitimate travel, adjudicate VWP ineligibility waivers, and identify potential threats. If an applicant exercises his or her option to answer the question and an initial vetting by CBP suggests possibly concerning information or a need to further verify information, an officer for CBP will have timely visibility of the information on those publicly available platforms in accordance with the privacy settings the applicant has selected on those platforms. Information regarding procedural guidelines for information gathered through social media can be found in DHS’s updated procedures.

Do I have to answer the new questions if the provisions of the new Act do not apply to me?

Yes. All applications must have all non-optional fields completed. The social media question is optional, and the ESTA application will make it clear that the question is not mandatory.

Is there a mechanism to inform all current ESTA holders (not just those who have previously indicated holding dual nationality) of the new requirements to prevent misunderstandings and complications?

CBP continues to work with the Departments of State and Commerce in reaching out to the public. They will also post all new information and any frequently asked questions that arise to their respective websites. It is strongly encouraged that all travelers either acquire an ESTA authorization or valid U.S. visa before making any travel reservations. Individuals can check on their status by visiting the ESTA website, a practice which should be carried out by all travelers before travelling.

Are there any waivers to the new eligibility requirements?

Yes, the Secretary of Homeland Security has the capacity under the new Act to waive these new travel-related VWP restrictions on a case by case basis if he or she determines that such a waiver is in the best interest of law enforcement or the national security of the United States. Generally, those eligible for a waiver include:

  • Individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen on official duty for international organizations, regional organizations, or sub-national governments;
  • Individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen for humanitarian non-governmental organizations (NGO);
  • Individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen as a journalist or for reporting purposes;
  • Individuals who have traveled to Iran, following the conclusion of the Joint Comprehensive Plan of Action from July 14, 2015;
  • Individuals who have traveled to Iraq for legitimate business-related purposes; and
  • Individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen who maintain current Global Entry program membership.

How do I obtain a waiver if I think I am eligible for one? How do I obtain a waiver if my ESTA is denied or revoked?

Separately applying for a waiver is incorrect, because travelers applying for an ESTA have their eligibility for a waiver determined on a case by case basis. If an individual wishes to travel to the United States after his or her ESTA has been denied or revoked, he or she must apply for a nonimmigrant visa at a U.S. Embassy or Consulate. If applying for a nonimmigrant vise after an ESTA denial or revocation as a direct result of the new Act and have imminent travel to the United States for business, medical, or humanitarian purposes, individuals can request an expedited visa appointment. It I suggested to retain a copy of any ESTA denial or revocation, for it may be requested to schedule an expedited appointment.

How will the public be notified of ESTA changes?

All changes to the ESTA process will be updated on the CBP website, and it is advised that individuals utilize this website to stay up to date on all ESTA changes. Emails will be sent to notify travelers whose ESTA status has changed as a result of these new eligibility requirements, to the email address provided in the application.

Also, any changes made to the ESTA form go through notice in the Federal Register and public comment under the Paperwork Reduction Act and are available It is recommended that travelers provide up to date contact information before the travel to the United States.

Will everyone—including those with no ties to Iraq, Syria, Iran, or Sudan, or no prior travel to Libya, Somalia, or Yemen—have to reapply and update their ESTA applications?

No, as long as the new eligibility requirements do not directly affect an individual and his or her ESTA has not been revoked, reapplication for a new ESTA authorization is not required until its expiration. If an individual has traveled on or after March 1, 2011 to one of the seven countries included in the new eligibility requirements, CBP recommends applying for a new ESTA authorization or apply for a visa to help traveling to the United States.

How is “dual citizen” or “dual national” defined? What if I was born in a country, but never lived there and do not consider myself a national or citizen?

Legal standards and practices of the United States will dictate nationality determinations. An individual’s ESTA eligibility is determined in accordance with U.S. law, and individuals who believe they are eligible should complete the ESTA form and answer all questions honestly and accurately.

What qualifies as a subnational government/entity?

State, regional or provincial counties, territories, and other intermediate levels of government constitute subnational governments.

How is “international (multilateral or intergovernmental)” organization or “regional (multilateral or intergovernmental)” organization defined?

An international (multilateral or intergovernmental) organization is an organization created pursuant to a multilateral act, for example a treaty, membership of which is made up of sovereign or member states or other intergovernmental organizations. The international organizations can be either global or regional in nature. The United Nations, the North Atlantic Treaty Organization, the International Atomic Energy Agency, the International Monetary Fund, and the European Union are all examples of such organizations.

How is a government official defined?

Government officials are defined as any individuals performing official duties for a VWP country’s government.

Will guidance be provided as to what documents are necessary to prove an individual falls under an exception (military/official) from the new Act?

During the admissions process, CPB reviews any documents presented at a port of entry which can demonstrate a VWP traveler qualifies for the official government or military exceptions under the new act. For this reason, travelers are recommended to carry with them certain documentation when traveling to the United States. A non-exhaustive list includes travel orders, official or diplomatic visas, or unofficial letters from the VWP country government entity. Questions may also be posed during the admissions process to travelers regarding their travel.

What is the Global Entry Program?

The Global Entry Program is used by the CBP that allows expedited clearance for pre-approved, low-risk travelers once they arrive in the United States. Members can utilize automated kiosks at certain airports to enter the United States. Travelers can apply for Global Entry on the CBP website.

How will CBP use my Global Entry information?

CBP has thoroughly vetted all members of the Global Entry Program. If an applicant is a Global Entry member, that individual has already voluntarily provided CBP identifying information, such as fingerprints, photograph, and travel history along with an interview by a CBP officer, which can all be used in adjudicating the traveler’s application for an ESTA.

Will the ESTA fee increase with these changes to the application?

No plan is currently in place to increase the ESTA fee once the changes take effect, and those who apply for a new ESTA through the enhanced system will still be charged the same standard ESTA fee.

Will there be fee waivers for individuals whose ESTAs were denied/revoked and now have to apply for a nonimmigrant visa?

No, the fee is a processing fee for each application, and DHS lacks legal authority to waive an ESTA fee. Travelers wishing to apply for visas must pay the associated visa processing fee.

How will the new information collected be used?

The new information will be collected in the same manner as other information through ESTA, and DHS will document these procedures in the SORN and PIA. As in the past, DHS will screen intending VWP travelers determining their eligibility for travel to the United States under the VWP. CBP will utilize the additional questions to determine applicant’s eligibility for travel and admission to the United States under the VWP.

Will DHS share the new ESTA information outside of DHS?

Other components can use information collected and maintained in ESTA solely on a need-to-know basis aligning with the component’s objective.

Current agreements between DHS and the Department of State (DOS) permit information attained from an ESTA application to be shared with consular officers of DOS to aid their determination of whether to issue a visa to an applicant after an ESTA travel authorization application has been denied.

Information is allowed to be shared with appropriate federal, state, local, tribal, and foreign governmental organizations or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, order, or license, or where DHS believes information would assist enforcement of civil or criminal laws.

Information can also be shared when DHS reasonably thinks such use would assist in anti-terrorism efforts or intelligence gathering related to national or international security or transnational crime. Any sharing that occurs will remain consistent with the ESTA SORN. Although carriers will not receive the ESTA application provided to DHS by the travelers, they will receive confirmation of a passenger’s ESTA status via the Advance Passenger Information System indicating whether ESTA is required and whether authorization has been granted.

How long will DHS retain the data generated from these additional ESTA questions?

The data retention period is the same as it was before. The application data remains active as long as the approved ESTA is valid, usually two years, or until the traveler’s passport expires, whichever occurs first. Consistent with both CBP’s search authority and with the border security mission mandated by Congress, DHS will then maintain this information for one year, after which it is archived for 12 years, with further limited access, allowing for retrieval of the information for law enforcement, national security, or investigatory purposes. Any data tied to active law enforcement lookout records, CBP matches to enforcement activities, and or investigations or cases including applications for denied ESTAs, will remain accessible for as long as the law enforcement activities to which they are related are active.

How will the new information collected be safeguarded?

Protecting privacy, civil rights, and civil liberties of all travelers remains a priority for CBP. This new information will be handled in the same manner as other information collected through ESTA, and these procedures are documented in the SORN and PIA. Information provided by applicants through the ESTA website will continue to be subject to the same strict security provisions, use limitations, and access controls currently in place for ESTA, and consistent with similar traveler screening programs.

Why is DHS taking action under a Paperwork Reduction Act (PRA) notice?

The revisions to the ESTA data elements fall under the PRA since DHS is amending an information collection.

Will this change to the ESTA application discourage legitimate foreign national travelers?

The new VWP eligibility requirements will have no effect on legitimate travel to the United States; if a traveler does not receive an ESTA, the traveler must get a U.S. visa from a U.S. Embassy or Consulate.

DHS wants to sustain legitimate trade and travel while maintaining the safety and security of the borders of the United States. Though travel requirements to the U.S. have increased, notably since September 11, 2001, the flow of goods and visitors continues to grow annually.

By adding these additional questions, will the ESTA now be the equivalent of an electronic visa?

No. ESTA requirements are not as complex as the requirements for a nonimmigrant visitor visa (B1/B2). In addition to completion of an online visa application (DOS-160), applicants for a B1/B2 visa are required to appear for an interview with a U.S. consular officer, and another part of the process requires applicants to submit biometric information prior to travel and supply additional biographical information.

Aside from these additional ESTA questions, how does VWP safeguard U.S. security?

VWP participating countries adhere to a high degree of security cooperation with the United States. Examples include signing and implementing information sharing agreements in respect to known, suspected, or potential terrorists and serious criminals, reporting lost or stolen passport data to Interpol or other avenues approved by the United States, and issuing electronic passports which comply with the International Civil Aviation Organization. VWP countries are also required to biennial eligibility reviews, the results of which provide DHS with the opportunity to conduct broad and consequential inspections of foreign security standards and operations as well as indicate the level of law enforcement and counterterrorism cooperation with the United States. It is the responsibility of the Director of National Intelligence to complete an intelligence assessment to support each eligibility review conducted by DHS.

Before travelling to the United States, VWP travelers need to obtain approval through the ESTA process. ESTA continuously compares the biographic information of applicants to the Terrorist Screening Database, visa revocations, previous VWP refusals, expedited removals, public health records, and lost and stolen passport records, including INTERPOL’s Stolen and Lost Travel Documents database.

Is VWP travel at the land border affected by the Act?

These new requirements are applicable to all VWP applicants independent of their mode of entry. If an applicant fails to meet the new eligibility requirements implemented by the act, that applicant is not eligible for travel and admission to the United States under the VWP. Ineligible individuals will be required to obtain a nonimmigrant visa. Waivers for a respondent’s travel history will not be adjudicated at the border through the I-94W.

Are there new passport requirements for travel to the United States under the VWP?

Yes. Beginning April 1, 2016, under the VWP, all nationals of VWP countries are required to possess an electronic passport in order to travel to the United States. Without an electronic passport, a valid nonimmigrant visa is necessary to travel to the United States.”

For more information, see the frequently asked questions.  

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Hawaiian District Court Judge Reopens Refugee Program, Family Exemption Expanded

The ongoing saga of the Trump Administration’s travel ban initiative for nationals of six Muslim countries continues. As we previously reported, the Supreme Court allowed a very limited portion of the travel ban to take effect before it issues a final decision likely later this year or in 2018, but the White House claimed a broader mandate from the court, thus ensuring more litigation.

In a July 13th decision, District Judge Derrick Watson of Hawaii determined that the definition of “close-family relationship” that the White House’s narrow interpretation of the  exemptions to the Executive Order barring travel to the United States from six Muslim-majority countries was too restrictive. The Judge expanded the language of the definition to include grandparents of individuals seeking refuge. The judge went so far as to refer to the definition previously employed by the government to “represent the antithesis of common sense.” Furthermore, Judge Watson determined that the government should not be permitted to exclude individuals who have a formal assurance from a United States refugee resettlement agency cannot be excluded from receiving refuge.

The decision represents the latest instance of resistance against the executive order titled, “Protecting the Nation from Foreign Terrorist entry into the United States.” The Supreme Court ruled in June that a modified version of the order could move forward, with individuals having a “bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions.” The Supreme Court, however, identified parameters for that definition as including, “only parents, parents-in-law, spouses, fiancés, children, adult sons or daughters, sons-in-law, daughters-in-law, siblings (whether whole or half), and step relationships.” The government’s interpretation of this inexplicably omitted grandparents, an omission which Judge Watson described as “the antitheses 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 also argued that a refugee’s connection to a resettlement agency was insufficient grounds for a qualifying relationship which would exclude the refugee from the provisions in the order. Judge Watson disagreed with this assessment. He argued that this qualified as a bona fide formal relationship because it met all of the qualifications of the status, “it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. Bona fide does not get any more bona fide than that.” Watson accordingly granted this motion.

For more information, view the full case.

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