Donald Trump’s State Department Is Acknowledging the Virtual Impotence of His Muslim Ban – Slate Magazine (blog)

Donald Trump arrives to speak at the Energy Department in Washington, DC, on June 29, 2017.

NICHOLAS KAMM/AFP/Getty Images

In response to the Supreme Courts ruling earlier this week, Donald Trumps State Department sent a cable to the United States diplomatic posts explaining how officials should implement the presidents Muslim travel ban. The administrations new guidance pushes the court-sanctioned implementation to be as restrictive as possible. It was also issued in secret, which means the administration is doing its damnedest to prevent the legal challenges that will surely follow. The guidance makes clear, though, that this version of the travel ban will not affect nearly as many of people as the original ban did, nor will it be as severe as the second version of the ban would have been had the court allowed it to go into full effect.

On Monday, the Supreme Court limited the ban to individuals who do not have a connection to a U.S. entity or a close familial relationship with a person in the United States. That vague descriptionthe court cited only the example of a relationship with a mother-in-law and spouseallowed the State Department to craft its own rules. What they came up with is the most limited plausible definition that falls within those boundaries. From the State Departments guidance:

The agency acknowledges at another point in the guidance that most non-immigrant visas are exempt from review under the travel ban because their bona fide relationship to a person or entity is inherent in the visa classification. Familial relationships are also often required for immigrant visas; there are special visa categories for spouses, parents, and siblings that will also be exempted from the travel ban based on this new guidance.

Who isnt exempt from the travel ban?

Whats left, it seems are a small number of visas that visitors from the six countries in questionIran, Libya, Somalia, Sudan, Syria, and Yemendont even use that often: independent media visas for those without a U.S. business connection (I visas), crewmen visas for air and sea companies that dont have some U.S. connection (C-1 and D visas), tourist visas (B visas), fiance visas (K visas), and refugee travel documents.

Its these last three categories that will affect the most people and face the most significant legal challenge. Say an Iranian woman wants to visit her American granddaughter in California on a tourist visa. Under this guidance she would be blocked. It seems possible that a court could decide a grandmother does in fact have a close familial relationship with her granddaughter. Its also possible, though, that a judge could decide that the government drew within the lines. I could see courts providing a lot of leeway to the agency to make that [familial] determination through the doctrines of deference to agency decisionmaking, Pratheepan Gulasekaram, a professor of immigration and constitutional law at Santa Clara University School of Law, told me via email.

Gulasekaram does think the government might run into trouble with its decision to exclude fiances. An entire visa category, K-1, already exists for people who are engaged to be married. Theres no sound rationale for excluding them while including in-laws, who dont have their own such visa category. I'm not sure why that makes sense, and certainly is something I would predict could and would be litigated, Gulasekaram wrote. It may not affect a huge number of people, but its an odd way to draw a line.

One final point: I wrote earlier this week that the administration might attempt to hide behind the doctrine of consular nonreviewability in order to obscure its decisionmaking around the issuance of individual visas. This State Department guidancealthough it was not issued publiclyis a tacit acknowledgement that there are now official guidelines in place regarding what does and doesnt qualify as a close family relationship. Gulasekaram said this guidance could allow the courts to review decisions that might otherwise have been hiddena district judge might issue a ruling on whether the State Departments interpretation of close family relationship is in fact the correct one. If courts decide a grandmother should get the same treatment as a mother-in-law, then Trumps feeble travel ban could become completely impotent.

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Donald Trump's State Department Is Acknowledging the Virtual Impotence of His Muslim Ban - Slate Magazine (blog)