United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO ENFORCE, OR, IN THE ALTERNATIVE, TO
MODIFY PRELIMINARY INJUNCTION
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
26, 2017, the United States Supreme Court granted certiorari
in this matter, granted in part the Government's stay
application, “and narrow[ed] the scope of the
injunction” entered by this Court with respect to
Sections 2(c), 6(a), and 6(b) of Executive Order 13,
Trump v. Int'l Refugee Assistance Project, Nos.
16-1436 (16A1190) and 16-1540 (16A1191), slip op. at 11-12
(U.S. June 26, 2017) [hereinafter Slip. Op.] (per curiam).
Plaintiffs challenge the Government's implementation of
the non-enjoined portions of EO-2, asking this Court to
enforce or, in the alternative, to modify the scope of the
existing preliminary injunction. See Pls.' Mot.
to Enforce or, In the Alternative, to Modify Prelim. Inj.,
ECF No. 328 [hereinafter Motion].
careful consideration of the parties' expedited
submissions, the Court concludes that on the record before
it, Plaintiffs have met their burden of establishing that the
requested injunctive relief is necessary to preserve the
status quo pending appeal regarding the definition of
“close familial relationship” employed by the
Government with respect to Sections 2(c), 6(a) and 6(b) of
EO-2. Plaintiffs have similarly met their burden with respect
to refugees with a formal assurance, as it relates to the
Government's implementation of Sections 6(a) and 6(b) of
EO-2, and participants in the Lautenberg Program.
Plaintiffs' Motion is accordingly GRANTED in these
respects and DENIED to the extent other relief is sought, for
the reasons detailed below.
Court briefly recounts the factual and procedural background
relevant to Plaintiffs' Motion.
This Court's March 29, 2017 Preliminary
March 15, 2017, the Court temporarily enjoined Sections 2 and
6 of EO-2 nationwide (“TRO”). See Hawaii v.
Trump, ___ F.Supp.3d ___, 2017 WL 1011673 (D. Haw. Mar.
15, 2017). Upon Plaintiffs' motion, full briefing, and a
March 29, 2017 hearing, the Court converted the TRO into a
preliminary injunction (“PI”). Hawaii v.
Trump, ___ F.Supp.3d ___, 2017 WL 1167383 (D. Haw. Mar.
29, 2017). The Government appealed the Court's ruling on
March 30, 2017. Notice of Appeal, ECF No. 271.
The Ninth Circuit's June 12, 2017 Opinion
Ninth Circuit's June 12, 2017 per curiam opinion
affirmed the injunction as to Section 2(c), suspending entry
of nationals from the six designated countries for 90 days;
Section 6(a), suspending the U.S. Refugee Admissions Program
(“USRAP”) for 120 days; and Section 6(b), capping
the entry of refugees to 50, 000 in fiscal year 2017.
Hawaii v. Trump, ___ F.3d ___, 2017 WL 2529640, at
*29 (9th Cir. June 12, 2017) (per curiam). The Ninth Circuit
vacated the portions of the injunction that prevented the
Government from conducting internal reviews, as otherwise
directed in Sections 2 and 6, and the injunction to the
extent that it ran against the President. Id., 2017
WL 2529640, at *29. The Ninth Circuit remanded to this Court
with instructions to enter an amended injunction consistent
with its opinion. This Court accordingly entered an amended
injunction on June 19, 2017, upon issuance of the expedited
mandate. Am. Prelim. Inj., Hawaii v. Trump, No.
1:17-cv-00050-DKW-KSC (D. Haw. June 19, 2017), ECF No. 291.
The Supreme Court's June 26, 2017 Order
Government petitioned for certiorari and filed an application
to stay both the preliminary injunction entered in this case
and the one entered by the District of Maryland in a case now
consolidated on appeal. Int'l Refugee Assistance
Project v. Trump, ___ F.Supp.3d ___, 2017 WL 1018235 (D.
Md. Mar. 16, 2017) [hereinafter IRAP] (issuing
preliminary injunction); aff'd in part, vacated in
part, 857 F.3d 554 (4th Cir. May 25, 2017) (No.
TDC-17-0361, D. Md.; renumbered No. 17-1351, 4th Cir.). On
June 26, 2017, the Supreme Court granted certiorari in both
cases. Slip Op. at 9. The Supreme Court also granted
“the Government's applications to stay the
injunctions, to the extent the injunctions prevent
enforcement of §2(c) with respect to foreign nationals
who lack any bona fide relationship with a person or entity
in the United States, ” Slip Op. at 11-12.
specifically, the Supreme Court stayed the preliminary
injunctions relating to Section 2(c) in the following manner-
The injunctions remain in place only with respect to parties
similarly situated to Doe, Dr. Elshikh, and Hawaii. In
practical terms, this means that §2(c) may not be
enforced against foreign nationals who have a credible claim
of a bona fide relationship with a person or entity in the
United States. All other foreign nationals are subject to the
provisions of EO-2.
Slip Op. at 12. The Supreme Court explained that the facts in
this case and in IRAP “illustrate the sort of
relationship that qualifies”-
For individuals, a close familial relationship is required. A
foreign national who wishes to enter the United States to
live with or visit a family member, like Doe's wife or
Dr. Elshikh's mother-in-law, clearly has such a
relationship. As for entities, the relationship must be
formal, documented, and formed in the ordinary course, rather
than for the purpose of evading EO-2. The students from the
designated countries who have been admitted to the University
of Hawaii have such a relationship with an American entity.
So too would a worker who accepted an offer of employment
from an American company or a lecturer invited to address an
American audience. Not so someone who enters into a
relationship simply to avoid §2(c): For example, a
nonprofit group devoted to immigration issues may not contact
foreign nationals from the designated countries, add them to
client lists, and then secure their entry by claiming injury
from their exclusion.
Slip Op. at 12.
respect to the enjoined portions of Section 6 relating to
refugee admissions and the refugee cap, the Supreme Court
reasoned that the “equitable balance struck [with
respect to Section 2(c)] applies in this context as
well.” Slip Op. at 13. It held-
An American individual or entity that has a bona fide
relationship with a particular person seeking to enter the
country as a refugee can legitimately claim concrete hardship
if that person is excluded. As to these individuals and
entities, we do not disturb the injunction. But when it comes
to refugees who lack any such connection to the United
States, for the reasons we have set out, the balance tips in
favor of the Government's compelling need to provide for
the Nation's security.
The Government's application to stay the injunction with
respect to §§6(a) and (b) is accordingly granted in
part. Section 6(a) may not be enforced against an individual
seeking admission as a refugee who can credibly claim a bona
fide relationship with a person or entity in the United
States. Nor may §6(b); that is, such a person may not be
excluded pursuant to §6(b), even if the 50, 000-person
cap has been reached or exceeded.
Id. (internal citations omitted).
Plaintiffs' Challenge To The Government's
Implementation Of EO-2
Government began enforcing the non-enjoined portions of EO-2
on June 29, 2017 at 8:00 p.m. EDT. In doing so, the
Government published guidance to its agencies on the
implementation and enforcement of EO-2, guidance that has
been amended, and which the Government has indicated will be
amended again, as circumstances warrant. See Katyal
Decl., Exs. A-C, & F, ECF Nos. 329-1, 329-2, 329-3, &
Government's guidance defines “close familial
relationship” as including a parent, parent-in-law,
spouse, fiancé, child, adult son or daughter,
son-in-law, daughter-in-law, sibling (whether whole or half),
and step relationships. These relationships are exempt from
EO-2. The Government's definition does not include
grandparents, grandchildren, aunts, uncles, nieces, nephews,
cousins, brothers-in-law and sisters-in-law. Plaintiffs
challenge the Government's narrower construction.
respect to refugee program guidance, the Government
instructed agencies that, “[t]he fact that a
resettlement agency in the United States has provided a
formal assurance for a refugee seeking admission . . . is not
sufficient in and of itself to establish a qualifying
relationship for that refugee with an entity in the United
States.” Katyal Decl., Ex. B, Dep't of State,
untitled guidance document (received by Pls. June
29, 2017), ECF No. 329-2. The Government also initially
indicated that it had not determined whether refugees with a
“bona fide relationship with a person or entity in the
United States” would be permitted to travel after July
6, 2017, and would issue further guidance. See Id.
Updated guidance from the State Department instructs its
private voluntary agency partners that “[n]o new
[advanced booking notifications (‘ABNs')] for
travel for cases with or without the required bona fide
relationship to a person or entity in the United States may
be requested at this time. We hope to allow new ABNs for such
cases to resume in the very near future, once we clarify
verification procedures.” Katyal Decl., Ex. F, E-mail
from Lawrence E. Bartlett, Dir., Office of Admissions, Bureau
of Population, Refugees, & Migration, to Voluntary
Agencies (July 3, 2017, 16:30 EDT), ECF No. 329-6. Plaintiffs
contest this guidance, principally asserting that refugees
with a formal assurance can credibly claim a bona fide
relationship with a refugee resettlement agency.
additionally request that the Court recognize that certain
client relationships with legal services organizations are
protected by this Court's injunction, and that the
participants in three specific refugee programs are
categorically exempt from EO-2: “U.S.-affiliated
Iraqis” at risk of persecution because of their
contributions to the United States' combat mission in
Iraq; participants in the Central American Minors Program;
and participants in the Lautenberg Program, each of which,
Plaintiffs argue, requires participants to have close family
ties with the United States, a relationship with a
“designated resettlement agency, ...