Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship6-30-2017Implementing the Refugee EO: Add GrandparentsPeter MarguliesRoger Williams University School of Law, pmargulies@rwu.eduFollow this and additional works at: http://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, President/Executive Department Commons, and theSupreme Court of the United States CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Implementing the Refugee EO: Add Grandparents, Lawfare ( June 30, 2017, 10:35 AM),https://www.lawfareblog.com/implementing-refugee-eo-add-grandparentsTRAVEL BANImplementing the Refugee EO: Add GrandparentsBy Peter Margulies  Friday, June 30, 2017, 10:35 AMImplementing a remedial decree always presents challenges. The Supreme Court’s partial stay of lower court injunctions of PresidentTrump’s revised Refugee Executive Order (EO) is an acute example of this venerable truth. The Court’s effort to do equity provided that to besubject to ordinary visa-processing (not the pause in admission to the U.S. decreed by the EO), a noncitizen abroad had to demonstrate a“credible claim” to a “bona ½de relationship” to a U.S. person or a U.S. entity. Operationalizing that standard has been a work in progress,but progress has been made. Since Thursday afternoon, the government has wisely added two groups to the ranks of those covered by thestay: refugees with a “formal, documented, and formed in the ordinary course” relationship with a U.S. entity, such as a refugee assistanceagency (FAQ 30) and ½ancé(e)s of U.S. persons (FAQ 29). EO challenger Hawaii has ½led a motion seeking further broadening of thegovernment’s guidance, which still excludes, inter alia, grandparents (and grandchildren) of U.S. persons. In this ¾uid environment, thegovernment should bring grandparents (and grandchildren) under its protective umbrella (see Marty Lederman’s post here).  Covering this group would be relatively simple, and would take off the table a very sympathetic example that EO challengers have used todrive home their arguments. To see why allowing grandparents (and grandchildren) to be subject to ordinary visa-processing would not be astretch for the government, it’s useful to understand how such processing works against the backdrop of the Supreme Court’s stay order.Bear in mind that the stay by its terms does not provide any particular individual or group with a right to enter the United States. The staymerely orders that ordinary visa-processing—not the EO—apply to noncitizens abroad with a “bona ½de relationship” to a U.S. person orentity. As immigration lawyers know, ordinary visa-processing has advantages, but also has many potential obstacles. The stay leaves thoseordinary obstacles in place; for those covered by the “bona ½de relationship” standard, the stay merely removes the extraordinary obstaclesposed by the EO.  How are grandparents situated under ordinary visa processing? As grandparents, not all that well—the Immigration and Nationality Act(INA) contains no provision granting visas based on a grandparenting relationship with a U.S. citizen or lawful permanent resident (LPR)(see Josh Blackman’s post here), let alone a person resident in the U.S. without such a status. However, for a skilled immigration lawyer,that’s only the beginning.Just as a competent tax attorney will consider a range of approaches that may allow a taxpayer to claim deductions or otherwise reducetaxable income, an immigration lawyer will consider different legal avenues that will allow a grandparent to enter the United States. Themost obvious avenue is one that makes covering grandparents under the stay a simple matter. Suppose a noncitizen abroad has a grandchildwho is a U.S. citizen or LPR. Grandchildren who are fortunate enough to have living grandparents also typically have parents. Suppose atleast one of those parents is also a U.S. citizen or LPR. Pursuant to human biology, one of those parents will also be the child (or son- ordaughter-in-law) of the noncitizen grandparent described above. That child/in-law relationship is squarely covered by the Supreme Court’sstay, and by the State Department’s current guidance. In such cases, grandparents are already protected by the stay, albeit as parents of U.S.citizens/LPRs. Covering grandparents expressly in such cases makes no practical difference at all to the government, which should make thismove immediately.In some cases, noncitizen grandparents abroad will have U.S. birthright citizen children, whose parents are undocumented immigrantsliving in the United States without a legal status. However, for nationals of the six countries affected by the revised EO’s country-basedpause in admissions (Iran, Libya, Somalia, Sudan, Syria, and Yemen), those situations will be relatively rare. Moreover, ordinary visa-processing will often be an obstacle in such cases. A noncitizen grandparent without a U.S. citizen child will not be eligible for an immigrantvisa, and will have to apply for a nonimmigrant visitor’s (tourist) visa. Pursuant to the INA and accompanying regulations, U.S. consularof½cers will deny a tourist visa to an applicant who they believe intends to remain in the U.S. past the visa’s expiration date. Under the INA,a relationship with a U.S. person may support the inference of such disqualifying intent. In other words, ordinary visa processing, which theSupreme Court’s stay leaves in place, will screen out such applicants. Here, too, covering grandparents under the stay will make littlepractical difference to the government.The period following the Supreme Court’s stay this past Monday has been hectic. However, progress has been forthcoming, in sharpdistinction to the chaotic period following issuance of the original EO in January. Further re½nements of the government’s guidance willinevitably ensue as all stakeholders work through the process. On balance, this week provides the basis for cautious optimism about theoutcome. Topics: Travel Ban, U.S. Supreme CourtTags: Executive Order 13780Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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