Attorney General Jeff Sessions went directly to the Supreme Court on Friday, asking for clarification of its June 26 travel ban decision and an immediate stay of  U.S. District Judge Derrick Watson’s July 13 ruling that modified his original injunction that stopped Executive Order 13780, which placed a temporary ban on all refugees and a temporary travel ban on residents of six Middle Eastern countries.

That original injunction was largely overturned in the Court’s  June 26 decision. Watson’s July 13 ruling significantly scaled back President Trump’s Supreme Court victory.

Late Friday, Acting Solicitor General Ken Wall filed a motion at the Supreme Court asking for the justices to clarify who qualifies as a close family member. If the Court is unwilling to go there, Wall alternatively asked the Court at minimum to stay Watson’s ruling while the U.S. Department of Justice (DOJ) appeals his latest decision.

“The district court’s interpretation of this Court’s June 26, 2017, stay ruling distorts this Court’s decision and upends the equitable balance this Court struck,” the DOJ said in its motion, citing two particular errors in Watson’s decision.

First, “The district court’s categorical holding that the Order may not be applied to any refugee applicant as to whom the Department of State has obtained a contractual commitment from a resettlement agency — which includes every refugee permitted to enter the United States — effectively eviscerates this Court’s ruling partially staying the injunction as to Sections 6(a) and 6(b),” the DOJ argued.

Second, “the district court’s sweeping interpretation of ‘close familial relationship’ to encompass a wide range of distant relatives — including cousins, uncles, and siblings-in-law — effectively eliminates the ‘close’ requirement and has no basis in this Court’s ruling or the INA,” the DOJ continued.

Sessions also played it safe by appealing Watson’s July 13 ruling modifying his injunction.

“Out of an abundance of caution, to ensure that there is no impediment to this Court’s prompt resolution of this issue, the government has also filed today a notice of appeal of the district court’s decision modifying its injunction,” the motion stated.

By going directly to the Supreme Court for clarification, Sessions outmaneuvered both Watson, the federal judge in Hawaii, and the Ninth Circuit Court of Appeals, which had given Watson a “roadmap” for his July 13 decision when it ruled earlier this month against his previous decision that requested clarification from the Supreme Court.

Now, Attorney General Sessions is asking the Supreme Court for that clarification.

Sessions’ move surprised most legal observers, who expected him to first appeal Watson’s July 13 decision to the Ninth Circuit, which would probably have affirmed Watson, and then appealed that decision to the Supreme Court.

Instead, Sessions is asking the Supreme Court to do what the Ninth Circuit ruled Judge Watson could not ask the Supreme Court to do: Clarify its decision.

“Nearly three weeks ago, this Court issued its per curiam decision partially staying the injunctions” issued by Judge Watson stopping the implementation of Executive Order 13780, the Department of Justice’s motion began.

“Since that time, the government has faithfully implemented Executive Order No. 13,780 consistent with the terms of the Court’s stay,” the DOJ motion continued.

However, “respondents [plaintiffs in the case, the state of Hawaii and Dr. Elksheik] pressed further in an effort to strip this Court’s stay of significant practical consequence. The district court [in Hawaii presided over by Judge Watson] adopted both of respondents’ arguments, and denied the government’s request for a stay pending this Court’s review. The government therefore is left to seek this Court’s immediate intervention,” the motion added:

“First, for aliens abroad who seek admission as refugees, this Court held that the suspension in Section 6(a) of the Order and the annual cap in Section 6(b) ‘may not be enforced against an individual * * * who can credibly claim a bona fide relationship with a person or entity in the United States,'” the DOJ said: (emphasis added)

Respondents do not contend that the government has applied Sections 6(a) and 6(b) to refugees who themselves have developed actual, bona fide relationships with U.S. entities. Rather, respondents object that, for every refugee who is likely to enter the United States while Sections 6(a) and 6(b) are in effect, the government has contracted with a resettlement agency to provide assistance to the alien once he eventually arrives in the United States, and the alien has a qualifying bona fide relationship on this basis.

Prior to the refugee’s arrival, however, the relationship is solely between the government and the agency, not between the agency and the refugee. Indeed, the agency typically has no contact with the refugee before his admission.

Because the fact of an assurance does not itself create a relationship between a refugee and a resettlement agency, the government has not treated that fact alone
as sufficient to trigger the injunctions.

“To do so (as the district court did) would render the refugee portion of this Court’s decision effectively meaningless,” DOJ maintained.

“Second, for aliens abroad who seek a visa, this Court similarly held that the suspension in Section 2(c) of the Order may not be enforced against an individual with a credible claim of a bona fide relationship to a U.S. person or entity, including “a close familial relationship” with a U.S. individual,” the DOJ argued: (emphasis added)

In interpreting what degree of closeness is required, the government looked to the waiver provision of Section 3(c)(iv) of the Order, which allows waivers for aliens who seek “to visit or reside with a close family member (e.g., a spouse, child, or parent)” in the United States.

That waiver provision in turn reflected the provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., governing eligibility for family-based immigrant visas, which are limited to spouses, children, parents, and siblings.

In light of related INA provisions and this Court’s stay decision, the government has further interpreted the phrase “close familial relationship” to include fiancé(e)s and parents- and children-in law.

At respondents’ urging, however, the district court interpreted that phrase also to include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, and
siblings-in-law. Again, that interpretation empties the Court’s  decision of meaning, as it encompasses not just “close” family members, but virtually all family members. Treating all of these relationships as “close familial relationship[s]” reads the term “close” out of the Court’s decision. Moreover, by divorcing the Court’s language from its context — namely, the Order’s waiver provision and the immigration provisions on which it was based — the district court adopted an expansive definition untethered to relevant legislative enactments or Executive action.

The government asked for the following relief:

The Court should clarify its June 26 stay ruling as set forth above. In the alternative, the Court may construe this motion as a petition for a writ of certiorari before judgment or as a petition for a writ of mandamus and should grant the petition and vacate the district court’s modified injunction. If the Court would prefer that the government pursue review in the court of appeals in the first instance, the Court should stay the district court’s injunction pending disposition of that appeal. In all events, the Court should grant a temporary administrative stay of the modified injunction pending disposition of this motion.

The government’s argument was particularly persuasive in dealing with the issue of what the court meant by “bona fide relationship” with a “close family member.”

“Respondents in this case (No. 16-1540) are the State of Hawaii and Dr. Ismail Elshikh, a U.S. citizen, who is married to a U.S. citizen, and whose Syrian mother-in-law seeks a visa to enter the United States,” the DOJ noted.

“The specific lines the government has drawn in implementing this Court’s ruling –- like the definition of ‘close family member’ in Section 3(c)(iv) of the Executive Order — are derived from the INA,” the DOJ argued:

Section 201 of the INA defines “immediate relatives” — the “most favored” family-based immigrant visa category, as “the children, spouses, and parents” of U.S. citizens. Step-relationships are included in the INA’s definitions of “child” and “parent.” .  . .

In contrast, the district court relied on a strained analogy to cases involving local housing ordinances and grandparents petitioning for visitation rights. In Moore v. City of East Cleveland, 431 U.S. 494 (1977), for example, the Court invalidated limitations on living arrangements of people in the United States, all of whom indisputably had due-process rights.

That hardly supports the proposition that such distant family members have a cognizable stake in whether their alien relatives abroad can enter the country. . .

[T]he government’s definition of close family members is consistent with the factual context for this Court’s stay ruling. . .

Although the Court did not catalogue exhaustively which “close familial relationships” are sufficient to exempt an alien from the Order, the Court left the injunction in place only for persons “similarly situated” to John Doe #1 and Dr. Elshikh.

The Court also explained that “[t]he facts of these cases illustrate the sort of relationship that qualifies,” citing Doe #1’s wife and Dr. Elshikh’s mother-in-law (who is also the mother of Elshikh’s U.S.-citizen wife).

Those types of immediate relationships reflect the reason why the Court determined that certain ties to family members in the United States weigh in favor of leaving the injunction in effect as to such persons: the U.S. relative “can legitimately claim concrete hardship if that person is excluded.”

On Friday, July 14, the first full day after Judge Watson’s decision, no refugees arrived in the United States, according to the Department of State’s interactive website.

The outcome of the DOJ’s motion now awaits a response from the Supreme Court.

Meanwhile, the DOJ’s appeal of Judge Watson’s July 13 modified injunction will go before the Ninth Circuit Court of Appeals.