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State v. Trump

United States District Court, D. Hawaii

March 15, 2017

STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs,
v.
DONALD J. TRUMP, et al ., Defendants.

          ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

          Derrick K. Watson United States District Judge.

         INTRODUCTION

         On January 27, 2017, the President of the United States issued Executive Order No. 13, 769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” See 82 Fed. Reg. 8977 (Jan. 27, 2017). On March 6, 2017, the President issued another Executive Order, No. 13, 780, identically entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” (the “Executive Order”). See 82 Fed. Reg. 13209 (Mar. 6, 2017). The Executive Order revokes Executive Order No. 13, 769 upon taking effect.[1] Exec. Order §§ 13, 14. Like its predecessor, the Executive Order restricts the entry of foreign nationals from specified countries and suspends entrants from the United States refugee program for specified periods of time.

         Plaintiffs State of Hawai‘i (“State”) and Ismail Elshikh, Ph.D. seek a nationwide temporary restraining order that would prohibit the Federal Defendants[2]from “enforcing or implementing Sections 2 and 6 of the Executive Order” before it takes effect. Pls.' Mot. for TRO 4, Mar. 8, 2017, ECF No. 65.[3] Upon evaluation of the parties' submissions, and following a hearing on March 15, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs' Motion for TRO (ECF. No. 65) is granted for the reasons detailed below.

         BACKGROUND

         I. The President's Executive Orders

         A. Executive Order No. 13, 769

         Executive Order No. 13, 769 became effective upon signing on January 27, 2017. See 82 Fed. Reg. 8977. It inspired several lawsuits across the nation in the days that followed.[4] Among those lawsuits was this one: On February 3, 2017, the State filed its complaint and an initial motion for TRO, which sought to enjoin, nationwide, Sections 3(c), 5(a)-(c), and 5(e) of Executive Order No. 13, 769. Pls.' Mot. for TRO, Feb. 3, 2017, ECF No. 2.

         This Court did not rule on the State's initial TRO motion because later that same day, the United States District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining the Government from enforcing the same provisions of Executive Order No. 13, 769 targeted by the State here. See Washington v. Trump, 2017 WL 462040. As such, the Court stayed this case, effective February 7, 2017, specifying that the stay would continue “as long as the February 3, 2017 injunction entered in Washington v. Trump remain[ed] in full force and effect, or until further order of this Court.” ECF Nos. 27 & 32.

         On February 4, 2017, the Government filed an emergency motion in the Ninth Circuit Court of Appeals seeking a stay of the Washington TRO, pending appeal.[5]See Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). The Ninth Circuit heard oral argument on February 7, after which it denied the emergency motion via written Order dated February 9, 2017. See Case No. 17-35105, ECF Nos. 125 (Tr. of Hr'g), 134 (Filed Order at 847 F.3d 1151).

         On March 8, 2017, the Ninth Circuit granted the Government's unopposed motion to voluntarily dismiss the appeal. See Order, No. 17-35105 (9th Cir. Mar. 8, 2017), ECF No. 187. As a result, the same sections of Executive Order No. 13, 769 initially challenged by the State in the instant action remain enjoined as of the date of this Order.

         B. The New Executive Order

         Section 2 of the new Executive Order suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen.[6] 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order's effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13, 769). Exec. Order § 3(a).

         The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order's effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b).

         Under Section 3(c)'s waiver provision, foreign nationals of the six countries who are subject to the suspension of entry may nonetheless seek entry on a case-by-case basis. The Executive Order includes the following list of circumstances when such waivers “could be appropriate:”

(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other longterm activity, is outside the United States on the effective date of the Order, seeks to reenter the United States to resume that activity, and denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of the Order for work, study, or other lawful activity;
(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
(iv) the foreign national seeks to enter the United States to visit a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under IOIA;
(viii) the foreign national is a landed Canadian immigrant who applies for admission at a land border port of entry or a preclearance location located in Canada; or
(ix) the foreign national is traveling as a United States Government sponsored exchange visitor.

Exec. Order § 3(c).

         Section 6 of the Executive Order suspends the U.S. Refugee Admissions Program for 120 days. The suspension applies both to travel into the United States and to decisions on applications for refugee status for the same period. See Exec. Order § 6(a). It excludes refugee applicants who were formally scheduled for transit by the Department of State before the March 16, 2017 effective date. Like the 90-day suspension, the 120-day suspension includes a waiver provision that allows the Secretaries of State and DHS to admit refugee applicants on a case-by-case basis. See Exec. Order § 6(c). The Executive Order identifies examples of circumstances in which waivers may be warranted, including: where the admission of the individual would allow the United States to conform its conduct to a pre-existing international agreement or denying admission would cause undue hardship. Exec. Order § 6(c). Unlike Executive Order No. 13, 769, the new Executive Order does not expressly refer to an individual's status as a “religious minority” or refer to any particular religion, and it does not include a Syria-specific ban on refugees.

         Section 1 states that the purpose of the Executive Order is to “protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” Section 1(h) identifies two examples of terrorism-related crimes committed in the United States by persons entering the country either “legally on visas” or “as refugees”:

[1] In January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. [2] [I]n October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.]

Exec. Order § 1(h).

         By its terms, the Executive Order also represents a response to the Ninth Circuit's decision in Washington v. Trump. See 847 F.3d 1151. According to the Government, it “clarifies and narrows the scope of Executive action regarding immigration, extinguishes the need for emergent consideration, and eliminates the potential constitutional concerns identified by the Ninth Circuit.” See Notice of Filing of Executive Order 4-5, ECF No. 56.

         It is with this backdrop that we turn to consideration of Plaintiffs' restraining order application.

         II. Plaintiffs' Motion For TRO

         Plaintiffs' Second Amended Complaint (ECF No. 64) and Motion for TRO (ECF No. 65) contend that portions of the new Executive Order suffer from the same infirmities as those provisions of Executive Order No. 13, 769 enjoined in Washington, 847 F.3d 1151. Once more, the State asserts that the Executive Order inflicts constitutional and statutory injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. SAC ¶ 1.

         Plaintiffs allege that the Executive Order subjects portions of the State's population, including Dr. Elshikh and his family, to discrimination in violation of both the Constitution and the INA, denying them their right, among other things, to associate with family members overseas on the basis of their religion and national origin. The State purports that the Executive Order has injured its institutions, economy, and sovereign interest in maintaining the separation between church and state. SAC ¶¶ 4-5.

         According to Plaintiffs, the Executive order also results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” SAC ¶ 5. Plaintiffs assert that by singling out nationals from the six predominantly Muslim countries, the Executive Order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States. Plaintiffs point to public statements by the President and his advisors regarding the implementation of a “Muslim ban, ” which Plaintiffs contend is the tacit and illegitimate motivation underlying the Executive Order. See SAC ¶¶ 35-51. For example, Plaintiffs point to the following statements made contemporaneously with the implementation of Executive Order No. 13, 769 and in its immediate aftermath:

48. In an interview on January 25, 2017, Mr. Trump discussed his plans to implement “extreme vetting” of people seeking entry into the United States. He remarked: “[N]o, it's not the Muslim ban. But it's countries that have tremendous terror. . . . [I]t's countries that people are going to come in and cause us tremendous problems.”
49. Two days later, on January 27, 2017, President Trump signed an Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.”
50. The first Executive Order [No. 13, 769] was issued without a notice and comment period and without interagency review. Moreover, the first Executive Order was issued with little explanation of how it could further its stated objective.
51. When signing the first Executive Order [No. 13, 769], President Trump read the title, looked up, and said: “We all know what that means.” President Trump said he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America, ” and that: “We don't want them here.”
58. In a January 27, 2017 interview with Christian Broadcasting Network, President Trump said that persecuted Christians would be given priority under the first Executive Order. He said (once again, falsely): “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
59. The day after signing the first Executive Order [No. 13, 769], President Trump's advisor, Rudolph Giuliani, explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.' He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.'”
60. The President and his spokespersons defended the rushed nature of their issuance of the first Executive Order [No. 13, 769] on January 27, 2017, by saying that their urgency was imperative to stop the inflow of dangerous persons to the United States. On January 30, 2017, President Trump tweeted: “If the ban were announced with a one week notice, the ‘bad' would rush into our country during that week.” In a forum on January 30, 2017 at George Washington University, White House spokesman Sean Spicer said: “At the end of the day, what was the other option? To rush it out quickly, telegraph it five days so that people could rush into this country and undermine the safety of our nation?” On February 9, 2017, President Trump claimed he had sought a one-month delay between signing and implementation, but was told by his advisors that “you can't do that because then people are gonna pour in before the toughness.”

         SAC ¶¶ 48-51, 58-60 (footnotes and citations omitted).

         Plaintiffs also highlight statements by members of the Administration prior to the signing of the new Executive Order, seeking to tie its content to Executive Order No. 13, 769 ...


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