Friday, June 30, 2017
"Implementing a remedial decree always presents challenges. The Supreme Court’s partial stay of lower court injunctions of President Trump’s revised Refugee Executive Order (EO) is an acute example of this venerable truth. The Court’s effort to do equity provided that to be subject to ordinary visa-processing (not the pause in admission to the U.S. decreed by the EO), a noncitizen abroad had to demonstrate a “credible claim” to a “bona fide relationship” to a U.S. person or a U.S. entity. Operationalizing that standard has been a work in progress, but progress has been made. Since Thursday afternoon, the government has wisely added two groups to the ranks of those covered by the stay: refugees with a “formal, documented, and formed in the ordinary course” relationship with a U.S. entity, such as a refugee assistance agency (FAQ 30) and fiancé(e)s of U.S. persons (FAQ 29). EO challenger Hawaii has filed a motion seeking further broadening of the government’s guidance, which still excludes, inter alia, grandparents (and grandchildren) of U.S. persons. In this fluid environment, the government should bring grandparents (and grandchildren) under its protective umbrella (see Marty Lederman’s post here)."