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Lawyers for the Trump administration asked the U.S. Supreme Court Friday to let the government use the list it compiled in late June for deciding who can apply for a visa under the limited enforcement of the president's executive order on travel.
Only the Supreme Court "can definitively settle whether the government's reasonable implementation" of the justices' earlier ruling is faithful to it, Justice Department lawyers said in a court filing late Friday.
A federal judge in Hawaii ruled Thursday that grandparents, aunts, uncles, cousins, nieces, nephews, and siblings-in-law must be added to the list of close family members who can still get visas to travel to the United States during the 90 days while the executive order is in force.
The State Department said on June 29 that only parents, parents-in-law, spouses, fiancés, children, and children-in-law would be exempt from the ban on visas for travel to the United States from six predominantly Muslim countries.
It acted after the U.S. Supreme Court ruled June 26 that while portions of the travel ban could be enforced, people overseas "who have a credible claim of a bona fide relationship" with a relative or organization in the United States would be exempt.
Responding to a motion by the state of Hawaii to broaden the exceptions, U.S. District Court Judge Derrick Watson said the State Department's definition of close family member "represents the antithesis of common sense." Grandparents, he said "are the epitome of close family members" and past Supreme Court decisions have defined the term much more broadly.
Watson also said the government wrongly determined that refugees would be subject to the ban even if they have an agreement with an American resettlement organization. Such an arrangement "is formal, it is a documented contract, it is binding," he wrote. "Bona fide does not get any more bona fide than that," he added.
But in asking the Supreme Court to put that ruling on hold, the Justice Department said Friday that the Hawaii judge's interpretation "encompasses not just close family members but virtually all family members" and reads the term "close" out of the Supreme Court's late June decision.
As for the refugee provision, the Justice Department said the only contract agreement is between the resettlement agency and the federal government, not between the agency and the refugee. Reading the ruling as the Hawaii judge does strips the Supreme Court's decision of any practical consequence, the administration lawyers said.
Watson declined to put his own ruling on hold while the Trump administration sought an appeal, but the government asked the Supreme Court to block it in order to prevent "needless uncertainty" about the executive order's enforcement until the justices can resolve the issues.
The Supreme Court will probably ask the Hawaii challengers to respond before deciding what to do.