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State v. Trump

United States District Court, D. Hawaii

July 13, 2017

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

          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

         INTRODUCTION

         On June 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, 780.[1] 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].

         Upon 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.

         BACKGROUND

         The Court briefly recounts the factual and procedural background relevant to Plaintiffs' Motion.

         I. Prior Proceedings

         A. This Court's March 29, 2017 Preliminary Injunction

         On 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.

         B. The Ninth Circuit's June 12, 2017 Opinion

         The 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.

         II. The Supreme Court's June 26, 2017 Order

         The 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.

         More 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.

         With 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).

         III. Plaintiffs' Challenge To The Government's Implementation Of EO-2

         The 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, & 329-6.

         The 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.[2] Plaintiffs challenge the Government's narrower construction.

         With 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.

         Plaintiffs 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, ...


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