(BIVN) – President Trump travel ban has taken partial effect, even as both sides of the Hawaii v. Trump lawsuit that challenged the legality of the executive order continue to debate its implementation.
Trump’s Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” order calls for a 90-day ban on travel for nationals of six majority-Muslim countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The State of Hawaii went to court to block Trump’s order “to protect its residents, its employers, its educational institutions, and its sovereignty.”
A Ninth Circuit Court decision – upheld by the United States Court Of Appeals – placed an injunction on the Executive Order. The Trump administration appealed to the United States Supreme Court.
The United States Supreme Court agreed to hear arguments later this year regarding the merits the nationwide injunctions issued by federal courts in Hawaii and Maryland. In the meantime, following a June 26 Supreme Court ruling, the federal government may carry out its executive order, although it may not enforce the travel and refugee bans against persons with a “credible claim of a bona fide relationship with a person or entity in the United States.”
But the definition of “bona fide” has been the subject of debate, so much so that the State of Hawaii has asked federal district Judge Derrick K. Watson to clarify the scope of the travel and refugee bans in Hawaii v. Trump in light of Monday’s SCOTUS ruling.
In response to “late guidance” issued by the federal government as to how it intends to implement the bans, Hawaii Attorney General Doug Chin says the motion asks the court to “clarify that the federal government may not enforce the controversial bans against fiancés, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States.”
Attorney General Chin said, “In Hawaii, ‘close family’ includes many of the people that the federal government decided on its own to exclude from that definition. Unfortunately, this severely limited definition may be in violation of the Supreme Court ruling.”
The Hawaii AG also complained that lawyers “repeatedly asked the Trump administration to indicate how it intended to implement the bans,” and that “the federal government did not respond until the information was publicly posted, hours before the partial bans are set to go into effect.”
Hawaii’s court motion, filed June 29, also states:
Hours ago, after days of stonewalling Plaintiffs’ repeated requests for information, the Government announced that it intended to violate the Supreme Court’s instruction. Beginning at 8:00 p.m. EST, it will apply the Executive Order to exclude a host of aliens with a “close familial relationship” to U.S. persons, including grandparents and grandchildren, brothers- and sisters-in-law, fiancés, aunts, uncles, nieces, nephews, and cousins. The Government will also exclude refugees who have a “bona fide relationship” with a U.S. resettlement agency—including refugees who already have a documented agreement with a local sponsor, and a place to live. And despite the Supreme Court’s claim that a foreign national cannot be blocked by the Order if he or she “credibl[y] claim[s]” a bona fide relationship with a U.S. person, the Government has instructed consulates to deny aliens entry whenever they are “unsure” if such a connection exists.
The Government does not have discretion to ignore the Court’s injunction as it sees fit. The State of Hawaii is entitled to the enforcement of the injunction that it has successfully defended, in large part, up to the Supreme Court—one that protects the State’s residents and their loved ones from an illegal and unconstitutional Executive Order.
Attorney General Doug Chin and representatives from the Muslim Association of Hawaii, ACLU, Japanese American Citizens League, Friends of Civil Rights, and Amnesty International will hold a news conference today (Friday, June 30) to discuss the implementation of the partial travel ban.
A lengthy discussion on the implementation of the partial travel ban was held at a State Department Press Briefing on Thursday. Spokesperson Heather Nauert delved into the specifics. Here is the transcript:
QUESTION: Okay. Thanks. Now, on the Supreme Court order and the guidance that went out to embassies last night, I know that there was the call earlier, but I didn’t get a chance to ask this. I don’t really expect you to have the answer, but I want to put it out there —
MS NAUERT: I will do my best.
QUESTION: — just to make sure it’s on-the-record. And that is the fate of Iraqis who worked for or with the U.S. military in – and the status of the P-2 refugee admissions, because they are not at all addressed in the guidance. And there are questions now about whether or not they would be – even though Iraq is not in the – it’s not among the six countries – these people would be refugees. And once the 50,000 cap has hit, all refugees have to do this – get the – show a bona fide relationship. The reason I’m asking this is because one would presume that working for the U.S. military would be a bona fide relationship with an American entity. But I’m – no one will – I can’t get anyone to say that. People say, “It’s a case-by-case basis, and it’s speculation.” So —
MS NAUERT: So, this —
QUESTION: — is there an answer to this question about the —
MS NAUERT: I don’t have an answer to that question.
QUESTION: Okay. Thank you.
MS NAUERT: It’s a good question; it’s a valid question. I know lots of Iraqis, and particularly those who have worked alongside the United States, will have questions about that. This is all very new. We were in a rush to pull this call together today with our experts so that we could get you all the answers that you want and that you deserve. That one, I’m going to have to get back with you on. And anybody needs – has any questions on that —
QUESTION: Okay. Please do. That’s it for me.
MS NAUERT: — I would just ask you to hold, please.
MS NAUERT: Okay. Let’s stay with the executive order first before we go onto something else. Hi, Michele.
QUESTION: Okay, so – thank you. On the refugee issue, as to what would be some scenarios where they would have a relationship with an entity – I know that there was no guidance given on that, but we were told on the call that the guidance was coming. So I don’t understand why that isn’t better spelled out. They referred to the ruling itself, but obviously in a ruling that doesn’t give guidance specifically there’s room for interpretation. So why hasn’t that been interpreted to include something like a resettlement agency? And when will the guidance be coming. It seems like it’s pretty necessary.
MS NAUERT: Okay. So there are a couple components to this. There are the visa applicants under this executive order and then there are also the refugees and that component of it. In terms of the refugees, some of that we do have a little bit of extra time to do that. That is until we reach the cap of 50,000. So we have a little bit more time in order to fully dig into this.
And in the coming days, we’ll be able to provide additional guidance. As you all know, this is very new; it’s 72 hours old. The worker – or the lawyers here at State, Justice, and DHS have been working nonstop to try to get all the information and the understanding and the legalese all put forward. So we’re going to work in the coming days to provide additional guidance. We do still have a little bit of time left.
QUESTION: And one more quick question on that. At the beginning of the call it was emphasized again that safety of the country is the number one issue here. But when you parse out the allowances, you could have a scenario where someone who doesn’t really have close ties to anyone in the country but is basically an adult who is attending a university here, that’s okay to come in, but someone who is a three-year-old grandchild of somebody else – n =ot allowed. Do you see how this, in the end, might not equal greater safety for the United States? And do you agree that there’s an arbitrary element to this?
MS NAUERT: I’m not going to define – I’m not going to characterize your view as arbitrary in any way. This has been one of the President’s top issues. He has talked consistently about how he believes the United States needs to do more to enhance our screening procedures and to take a better look at people who will be coming into the United States because the safety and security of Americans comes first. Some of this enhanced screening – there are review procedures that are taking place. Some of those started just a week ago; some of those will have 120 days to be reviewed and all of that.
I’m not going to get into hypotheticals about different family variations and whether or not they should be coming into the United States. I think you’re talking about the bona fide relationship, and the bona fide relationship and who falls under that category. I think it’s fairly broad. But I’m not going to get into grandparents and all of that.
QUESTION: Okay. Thanks.
MS NAUERT: Okay. Anything else on the EO?
QUESTION: Just a point of clarification on that.
MS NAUERT: Sure.
QUESTION: You said that there’s a little bit of time with the refugee cases because you haven’t fit the 50,000 cap yet.
MS NAUERT: Correct.
QUESTION: But there’s still the 120-day suspension. So does that not kick in until the 50,000 cap is met?
MS NAUERT: My understanding is that until we reach that 50,000 cap that we still have time – I was talking with some of our lawyers and folks upstairs about this very thing – that we still have time to get all of the details in place.
QUESTION: On the bona fide relationships —
MS NAUERT: Yeah.
QUESTION: — can you explain exactly what – how is the State Department and U.S. Government I guess interpreting this bona fide relationship language? And what exactly – how does somebody establish that?
MS NAUERT: You mean in terms of paperwork?
MS NAUERT: Okay.
QUESTION: Yeah. I mean, what – yeah.
MS NAUERT: So a lot of that will be determined by the consular officers when they actually do their visa interviews for that. I can tell you a little bit more about what’s considered to be a bona fide relationship. I know a lot of Americans, a lot of folks overseas, will have questions about that. It’s considered a close familial relationship. It covers a parent; it covers an in-law, a mother-in-law, a father-in-law; a spouse; a child; adult son, daughter; son and daughter-in-law; a sibling, a whole or a half, including step relationships. Those are considered to be bona fide relationships, close familial relationships. And one of the things that we talked about a little bit on the call is that is under the Immigration and Nationality Act. And that’s where we took that definition of that.
QUESTION: What about – because it also said entities, not – I believe it also said entities, not just families. So does it refer to, for instance, students in universities and people who have been invited by jobs or by some kind of organization?
MS NAUERT: Those very examples it would include: someone coming over here to study at a university – this is my understanding – and also people who have been offered jobs in the United States.
Okay. Anything on the EO?
QUESTION: Can we stay on it?
MS NAUERT: Hi.
QUESTION: So just on the vetting. I mean, there was a fair amount of criticism about the need for review of the vetting on refugees, especially given that there have been reports showing that of 780,000 or so refugees brought into the United States since 2001 there have been three people arrested on allegations of potential terrorist attacks. So what is the current State Department view on the vetting procedures for refugees? Is this an acknowledgment that those vetting procedures are not thorough enough?
MS NAUERT: I know that we are always looking for additional ways to enhance our screening, whether it be for visa applicants or if it’s for refugees. Refugees are vetted pretty significantly, among the highest, in terms of people who are vetted to come into the United States.
One thing we haven’t talked a lot about right here is the memorandum that went along with the executive order, and that puts into effect enhanced screening and vetting applications – vetting requirements for visa applicants. And that’s a really – actually an interesting angle, because that’s something that folks worldwide would apply to potentially anyone in any country around the world, and that is where we, in the past, have asked for information, for example, five years of travel history, family relationships, that type of thing.
And now our consular affairs officers – again, in every country, it could apply to any person – if our consular officers want to get additional information because they think that they would need more information to better screen someone, then they have the ability to ask certain questions and get that kind of information. And that’s, again, something we haven’t talked about a whole lot, but I have a form here in front of me if anyone’s interested in that, and that’s the DS-5535 and additional forms.
So that is just one example of how we’re constantly looking at ways of improving our screening to be able to make sure that Americans here at home are safe and we’re allowing in the kinds of folks who don’t want to do us harm.
QUESTION: So —
QUESTION: So just to follow up on that.
MS NAUERT: Yeah.
QUESTION: I mean, the President and the State Department have both said that these are based on efforts to improve national security, and that’s the top priority, but you’ve never given us direct evidence that refugees coming into the United States pose a threat to national security. So does the U.S. have evidence that refugees pose a threat to national security?
MS NAUERT: I think that would be more of a Department of Homeland Security issue, on that.
QUESTION: Can I just ask —
MS NAUERT: Okay. Sure.
QUESTION: — if you already have – and I raised this in the call – but if you already have these enhanced – this enhanced ability to do extra vetting for anyone in any country applying for any visa, why do you need this?
MS NAUERT: I think this is a matter in which the United States is always looking for ways to continue to enhance, alter, and improve its security procedures.
QUESTION: Yeah. But —
QUESTION: Heather, so is the 120-day clock started already or is it going to start on July 6th? And why do you guys need a 120-day clock to examine the vetting procedures and the refugees? Couldn’t you have started that in January or February, even when the EO was suspended?
MS NAUERT: I believe – and I’m going to do my best to try to answer this for you.
MS NAUERT: I believe the part that you were talking about with this enhanced screening, those review procedures started about a week ago. One hundred and twenty days and how that timeframe was selected was part – my understanding is – a part of the executive order. If I can – I can put you in touch with somebody who could probably better answer that question than I can. That – some of that predates me. So I wasn’t involved in the process then, but if you want any more on that I can try to get that for you.
QUESTION: But just so the – so are – I just want to make sure which questions you’re not answering. Is it —
MS NAUERT: Gardiner, come on.
QUESTION: I’m sorry. I’m sorry.
MS NAUERT: Look, I just told you. I’m —
QUESTION: I want —
MS NAUERT: I’m doing my best.
QUESTION: I am too. I am too.
MS NAUERT: This is all new. This is a part of the executive order. Why 120 days was selected, that I don’t know off the top of my head.
QUESTION: No, I’m not asking that, but —
MS NAUERT: If you want me to try to get you an expert who can answer that question for you —
QUESTION: I’d love that.
MS NAUERT: — I can.
QUESTION: But I just want to know, do you have any notion (a) about when that clock starts? Is that now or July 6th?
MS NAUERT: My understanding is that it started about a week ago – the review process for enhanced screening.
QUESTION: Oh, before the executive order was even lifted by the Supreme Court then?
MS NAUERT: Some of this review procedure that was required under the executive order —
MS NAUERT: — my understanding is that it started about a week ago because that – and I don’t know why that was – that timeframe was selected. Let me —
MS NAUERT: Let me just get you somebody on that who can best answer that, okay?
QUESTION: He’s asking you about the 120-day suspension of the refugee program, which begins once you hit the cap.
QUESTION: Don’t know —
QUESTION: Or does it?
QUESTION: That’s true. That’s what I’m asking. When does the time clock start? Does it start when you hit the cap?
MS NAUERT: So you weren’t asking then about the review procedures?
QUESTION: Well, so in the executive order, it lists that there is a 120-day suspension of refugee entries while the administration examines the program in its entirety, right?
MS NAUERT: Mm-hmm.
QUESTION: And so I think this is separate from the enhanced – my understanding – I’m not talking about the enhanced vetting procedures that you guys have already done. I’m simply talking about in the refugee program you’re supposed, to under the executive order, suspend all refugee entries. And of course this is complicated by the fact that the Supreme Court has said, well, that’s true but we’re going to let you – we’re going to let some people in who have a bona fide relationships; you guys have defined what that is. I’m just sort of – I – so I’m puzzled about when the 120-day suspension of the entire refugee program would go into effect and why you would need that if you have already had five and some-odd months to sort of look at the program.
MS NAUERT: Well, with the refugee program there’s a cap on the number of refugees, and that’s a cap at 50,000 and we’re very close to reaching that cap. We’re about 800 or so, 900 or so, away. And that’s why when I was talking earlier about how we have a little bit more time in order to get that definition completely tied down.
MS NAUERT: Okay. Anything else on the executive order?
QUESTION: But (inaudible) 120 days in the original executive order. So are you saying that when the cap is met, that’s when the 120-day suspension kicks in? They’re not concurrent?
MS NAUERT: Let —
QUESTION: Or is it tonight at 8:00 p.m. when (inaudible) —
MS NAUERT: Guys, instead of everybody chiming in about what they think this might mean, let me please get back with you with one of our lawyers who’s been working with DHS and DOJ to best answer that question. Okay? So let me just take the bulk of that question and get back with you. And any folks watching on TV, they’re probably like, “What on Earth are you guys talking about?” So let me get back to you with a good, concrete answer on that one. Okay?
Anything else on the EO that’s not related to the 120 days?
MS NAUERT: Okay. Hi, how are you?
QUESTION: On the EO question, I think we’ve all gotten sort of into the legal nuances a lot.
MS NAUERT: Yeah.
QUESTION: But we’ve still, like this press corps, the American public, have not really been given a clear answer as to why these six countries and people from those six countries presents a real threat to the United States. That call today started off saying that we want to prevent mayhem and terror in the United States. People from these six countries have not carried out those attacks in the United States. It just hasn’t happened. There’s – some countries you could say maybe, if you want to argue for a travel ban in some form, should belong on that list. Some don’t. But it – the policy as it is hasn’t really been fully explained.
And then if you want to get into the grandparents, grandchildren, I mean, what percentage of terrorist attacks have been carried out by grandparents from these six countries? I think that is something that we deserve an answer to that hasn’t really been – and other than saying – and that was asked today on the call, and the official just pointed to President Trump’s comments about this. That’s not really an answer.
MS NAUERT: Well, there were people on that call from State, White House, DOJ, and also DHS.
QUESTION: And they couldn’t justify the policy.
MS NAUERT: I don’t know that I would agree with that. You all had the opportunity to ask the lawyers and ask folks more – the experts who were involved in putting this together – more questions about that. And I really didn’t hear too many questions about that very topic.
QUESTION: We were – we asked. Reuters asked what is the danger of a grandparent from one of these six countries coming into the United States. And the answer was —
MS NAUERT: And we’re talking about the definition.
QUESTION: — this is the guidance —
MS NAUERT: And the definition —
QUESTION: The answer was this is the guidance we’ve been given by the President. That’s not an answer as to how that individual harms the United States or presents a terrorist threat to the United States.
MS NAUERT: Well, I’m sorry that you’re not pleased with that answer. That’s the answer that the experts gave you. I can tell you that we received the family definition from federal law, and we received the family definition. And for whatever reason it doesn’t include grandparents, but we were just going along with what federal law states.
Okay, next question.
QUESTION: Was there any sort of risk assessment in deciding what bona fide relationships are, or was it strictly a legal interpretation of past law like the INA?
MS NAUERT: There have been three days to get through this and to try to put that together, so I’m not sure that anyone was able to do a risk assessment, as you suggest, about grandparents. But the lawyers have been putting together —
MS NAUERT: — putting this together and working on it for the past few days.
MS NAUERT: Okay. Anything else on the executive order?
QUESTION: On her question, her point, though, that it is true that there was, shall we say, not a lot of enthusiasm on the call from the officials, except for one official who was from the White House, for this. And when asked what specifically this would do to improve security, all of the – all of the officials, four of the five officials who were on the call, basically said we’re doing this because the court has told us to and did not offer an explanation of how it does make it safer.
MS NAUERT: Look —
QUESTION: So if there is an answer —
MS NAUERT: Their jobs —
QUESTION: I know.
MS NAUERT: — is to implement.
QUESTION: Their job is to carry out – exactly.
MS NAUERT: Okay? Their job is not to be a person who will come out and advocate for or against something in this fashion. It wouldn’t be appropriate for them to do so. These are civil servants and Foreign Service officers. You know they’re not going to get into the politics of this kind of thing. Their job is to execute and implement, and they were given the – some direction by the Department of Justice. They all worked together to come up with this, and they professionally put something together and gave you the answers. You’re saying that there wasn’t a whole lot of enthusiasm. That’s your opinion. But these folks have been hard at work doing their jobs.
MS NAUERT: Okay.
QUESTION: But can you offer just a justification for it? I mean, you are a political appointee. I mean, this is your administration. So can you tell us why this country is safer having this executive order and banning people from these countries that have never committed attacks on the United States previously except in, what was it, the —
MS NAUERT: Gardiner, as far as I’m going to go is saying that with some of these countries – and we would take issue certainly with the Government of Iran and some other nations – that there can be concerns. And the American public could have legitimate concerns about their safety when we open our doors. And we want to open our doors to people who are willing to go through proper screening measures and who want to be here and want to be productive members of our society. I’ll leave it at that.
QUESTION: The people of Iran are very pro-American people (inaudible).
MS NAUERT: I know that. That’s why I said we take issue with the Government of Iran, not the people of Iran, certainly. Okay?
QUESTION: But the people are the ones that are banned.
MS NAUERT: Look, I know you guys want to push me to say something about this.
QUESTION: To defend the policy. That’s it.
MS NAUERT: Yeah. Okay.
QUESTION: I’m not trying to – it’s not a gotcha question.
MS NAUERT: Okay. Anything else on the executive order?
MS NAUERT: No. Okay.
The White House and the State of Hawaii interpreted portions of the SCOTUS order differently, right down to whether or not the ruling was unanimous. Trump issued a statement celebrating the 9-0 decision, while the State of Hawaii framed it as 6-3.
On Thursday, the Deputy Press Secretary Sarah Sanders addressed the discrepancy, from the perspective of the administration:
“On Monday, Sean was asked about how we knew that the Supreme Court’s ruling on the President’s travel executive order was 9-0 when the case was — when the decision was announced. In fact, the decision, which stayed the lower court’s injunction on the President’s executive order for all affected individuals without a bona fide connection to a person or entity in the United States, was unanimous on the point that the stay should be granted at least to that extent. Three justices would have gone further and stayed the injunctions in full. No justice dissented on the point that the stay should be granted in part, and no justice indicated that he or she did not participate in the decision.”