On Monday, June 26, the U.S. Supreme Court granted certiorari and consolidated the 4th and 9th Circuit Courts of Appeals cases that prohibited the enforcement of President Trump’s travel ban. In doing so, the U.S. Supreme Court partially lifted the preliminary injunctions issued by the 4th and 9th Circuit Courts of Appeals and ruled that the travel and refugee bans “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship” with a U.S. person or entity (Trump v. IRAP, 6/26/17). Furthermore, although the Court clarified that a bona fide relationship to a U.S. person must be a “close familial relationship,” the Court did not define what that phrase meant.
Left without a clear definition, the Trump Administration, through the U.S. Department of State, issued guidance on June 28, 2017 to U.S. embassies and consulates adjudicating visa applications in which it defined “close family” to include “parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. ‘Close family’ does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other ‘extended’ family members.”
The guidance issued by the Trump Administration shows a fundamental lack of empathy and a failure to understand the realities of non-traditional or cultural family dynamics, where extended family members often serve as primary caregivers. For example, in the United States, more than 4.9 million American children are raised by their grandparents, and this figure is expected to increase due to issues around poverty, crime, incarceration, war and illness. In fact, “grandparent-headed households have helped fuel the rise in multigenerational households,” and this is a phenomenon that has been steadily increasing over the last 40 years. (http://www.prb.org/Publications/Articles/2012/US-children-grandparents.aspx)
According to Merriam-Webster’s Dictionary, the term “bona fide” means “authentic” or “genuine.” The definition of “close family” established by the Trump Administration creates an artificial (not authentic or genuine) hierarchy in which one relative, by law (marriage) or by blood (birth), possesses more value than another. “For example, your mother-in-law is close enough to come into the U.S., but not your grandmother, who is a blood relative without whom you wouldn’t exist.” (https://www.bloomberg.com/view/articles/2017-06-29/new-travel-ban-rules-create-awkward-family-dynamics) Is one person’s relationship with his fiancé any less bona fide or meaningful than another person’s relationship with his step brother?
What criteria are the Trump Administration using to determine or measure “bona fide”? Ultimately, who gets to decide what “family” means and which family members have more genuine value? Is it the place of our government to determine that a step parent, whose relationship may be established merely through act of law, has any more standing or value than a grandparent?
Separating families based on a false narrative is cruel and inhumane to those individuals specifically affected by this travel ban. Many of the individuals who are directly affected by this travel ban have already had their families destroyed by war, terrorism and acts of extreme violence. Many have waited months if not years to be reunited with the only family they may have left, which may be an aunt, uncle, cousin or grandparent. By prohibiting such individuals to enter the United States because we have placed an artificial value on certain relationships merely re-victimizes people who have already endured unimaginable horrors. We all agree that our president should have the tools to protect our nation’s security. What should we say, for example, to a young person whose parents were killed during acts of terrorism in Syria and whose only relative may be an aunt, uncle or grandparent? How do we reconcile this decision with our nation’s history and image of being “the land of the free and the home of the brave”?
Since the U.S. Supreme Court’s ruling on June 26, and the administration’s initial and highly restrictive definition, there have been substantive changes to the “close familial relationship” definition. On June 29, the administration reversed its decision and stated that fiancés would be considered close family members and therefore allowed to travel to the United States. Moreover, on July 13, the U.S. District Court in Hawaii issued a ruling that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins would also be included in the definition of close family, thereby enabling these family members to travel to the United States as well.
By Michael J. Wildes
Michael J. Wildes is the Managing Partner of Wildes and Weinberg, P.C. Mr. Wildes is a former federal prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). He has testified on Capitol Hill in connection with anti-terrorism legislation. He is an adjunct professor at the Benjamin N. Cardozo School of Law in New York and teaches business immigration law. From 2004 through 2010, Mr. Wildes was also the mayor of Englewood, where he resides. Wildes and Weinberg, P.C. has offices in New York, New Jersey, Florida and Los Angeles and sees clients by appointment only. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.
