Hawaii Attorney General Doug Chin (left) smiles as he leaves a federal courthouse with assistant Joshua Wisch after President Donald Trump's travel ban was returned to the 9th U.S. Circuit Court of Appeals Monday. | Elaine Thompson/AP 9th Circuit hears fight over interpretation of Trump travel ban

A federal appeals court on Monday struck a decidedly skeptical tone toward the administration’s efforts to deny grandparents an exemption from President Donald Trump’s travel-ban executive order.

All three judges on a 9th U.S. Circuit Court of Appeals panel that heard arguments on the controversial directive sounded doubtful about a Trump administration interpretation that excluded grandparents and certain other family members from those who could qualify for a carve-out that the Supreme Court ordered for foreigners with a “close familial relationship” to someone in the United States.


“How can the government take the position that a grandmother or a grandfather or aunt or uncle of a child in the U.S. does not have a close familial relationship? Like, what universe does that come from?” Judge Ronald Gould said at the hearing in Seattle as lawyers had just begun arguing over a Hawaii federal judge’s ruling that rejected the administration's narrower stance.

Justice Department attorney Hashim Mooppan acknowledged that many people would consider as grandparents and others as “close” relatives. But he insisted that’s not the best reading of what the Supreme Court meant when it issued a temporary stay in June allowing some people to avoid Trump’s directive to block travel of citizens from six majority-Muslim nations and to suspend the flow of refugees from across the globe.

“The government doesn’t dispute that many people have a profound connection with their grandparents.” Mooppan said. “And we don’t even dispute that in ordinary speech and sometimes in even some legal contexts, one might refer to grandparents and even other extended family members as close. That doesn’t mean that for a legal definition of ‘close family’ that that would count, and Congress themselves have recognized that.”

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Mooppan suggested that the narrower definition the Trump administration tried to use was easier to administer and had better support in existing immigration laws. He called the federal government’s approach “one that’s not based just on intuition or cherry picking statutes but one that’s based on a line that can be drawn and that was clear to the government from the moment the court ruled.”

While the Trump administration’s stance does have support in numerous provisions of immigration law, it runs headlong into one central and confounding problem: Because one of the suits pending at the Supreme Court involved an effort to bring an American’s mother-in-law to the United States, the court specifically said that relationship was covered.

Judge Richard Paez, participating in the hearing via videolink, jumped on that point early in the 40-minute argument. “What is significantly different between a grandparent and a mother-in-law [or] father-in-law? What is so different about those two categories?…One is in and one is out.”

“‘Close family’ has to have some meaning,” Mooppan said at another point. “It can’t just mean all family except the most distant.”

A lawyer for the State of Hawaii, which brought one of the two travel-ban challenges that the Supreme Court is set to take up in October, urged the appeals court panel not to disturb the lower court’s ruling that grandparents, aunts, uncles and cousins should qualify for the exemption.

“This is not an arbitrary line that plaintiffs have invented but one drawn directly from the Supreme Court,” said the lawyer, Colleen Roh Sinzdak of the Washington law firm Hogan Lovells. She dismissed the Trump administration’s approach as based on a “cramped understanding” of what the justices said.

The issue that was argued Monday went before the same 9th Circuit panel that found Trump’s travel-ban order illegal in a ruling in May. All three judges on the panel were appointed by President Bill Clinton. Appeals arising from the same case are typically directed to the same panel of judges.

Judge Michael Daly Hawkins, the third on the panel, noted that the substance of the president’s directive wasn’t up for debate Monday. Instead, it was the interim order the Supreme Court issued when it decided to take the case for decision later this year.

“We’re not here on the merits,” Hawkins said. “That’s one of the toughest things about this case. We’re trying to shape a remedy that will satisfy the United States Supreme Court, so when they hear the case on the merits in a couple of months they can make an appropriate decision.”

The Supreme Court’s order in June declared that Trump’s directive couldn’t be enforced, for now, against people with a “bona fide relationship” with an American person or entity. Judge Derrick Watson of the U.S. District Court in Hawaii ruled last month that the Trump administration was interpreting that exemption too narrowly by excluding people whose relatives in the United States are grandparents or cousins.

However, the new round of 9th Circuit arguments also focused on which refugees are exempt from the ban. Hawaii’s lawyers argued, and Watson agreed, that refugees already assigned to U.S. resettlement agencies have enough of a tie to a U.S. organization to qualify for the exemption created by the Supreme Cour

Mooppan, the government lawyer, repeatedly noted that in a July ruling, the Supreme Court put on the additional accommodation for refugees that Watson decreed. Such a ruling from the high court typically means the justices have concluded that there is a strong case that the lower-court judge made an error.

“I think that by itself is basically dispositive” of the refugee issue, the Justice Department lawyer said. He also noted that with about 24,000 refugees assigned to U.S. resettlement agencies, giving all those refugees an exemption from the travel ban would essentially nullify its impact on refugees between now and when that aspect of the travel ban is set to expire, in late October.

Sinzdak suggested that the key issue with the refugees was not the intimacy of their relationship with the resettlement agencies, but how those agencies will lose money and experience other negative impacts from the refugees’ being denied permission to come to the United States.

“What [the justices] looked at as the salient feature was: Who will experience concrete hardship from the application of the executive order?” she said. “It’s clear the resettlement agencies will experience concrete hardship, so … they meet the test that the Supreme Court articulated.”

The 9th Circuit judges were a bit harder to read on the refugee issue, although Paez asked several questions challenging the government's interpretation on that point and Hawkins made at least one similarly skeptical comment.

It’s unclear just how many refugees have been blocked so far because they lack a family connection or other tie to the United States but are assigned to a resettlement agency. The process is complex, and the Trump administration has had difficulty quickly turning the flow on and off.

About 50,900 refugees have been admitted during the current fiscal year, which ends in September. Trump tried to lower the cap for this year to 50,000, but President Barack Obama had set it at 110,000.

Court challenges have questioned Trump’s authority to make such a midyear reduction, but there’s little doubt he has the authority to set a new figure for the new fiscal year starting Oct. 1. Refugee advocates are watching closely for that number.

The timing of the current travel ban order — which Trump billed as an anti-terrorism measure but that critics say amounts to invidious discrimination against Muslims — also adds new wrinkles to the litigation. The 90-day ban on issuance of visas to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen expires Sept. 24. So that part of Trump’s policy could be expired by the time the case is argued at the Supreme Court on Oct. 10.

Some observers say the Trump administration could try to scuttle the Supreme Court arguments or to persuade the justices to treat the case as moot.

Each side is scheduled to have 20 minutes to present its case, although the judges often extend the time. Video of the session is expected to be streamed live on the 9th Circuit website.

Mooppan, of the Justice Department’s Civil Division, is slated to argue against Watson’s interpretation of the Supreme Court’s order. The State of Hawaii, the lead plaintiff in the case, will be represented by Sinzdak.

