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State v. Trump

United States District Court, D. Hawaii

October 17, 2017

DONALD J. TRUMP, et al ., Defendants.




         Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.

         On June 12, 2017, the Ninth Circuit affirmed this Court's injunction of Sections 2 and 6 of Executive Order No. 13, 780, 82 Fed. Reg. 13209 (Mar. 6, 2017), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”). Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Ninth Circuit did so because “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” in 8 U.S.C. § 1182(f). Hawaii, 859 F.3d at 755. It further did so because EO-2 “runs afoul of other provisions of the [Immigration and Nationality Act (‘INA'), specifically 8 U.S.C. § 1152, ] that prohibit nationality-based discrimination.” Hawaii, 859 F.3d at 756.

         Enter EO-3.[1] Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries[2] would be “detrimental to the interests of the United States, ” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776-79.

         Accordingly, based on the record before it, the Court concludes that Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their statutory claims, 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. Plaintiffs' Motion for a Temporary Restraining Order (ECF No. 368) is GRANTED.


         I. The President's Executive Orders

         On September 24, 2017, the President signed Proclamation No. 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” Like its two previously enjoined predecessors, EO-3 restricts the entry of foreign nationals from specified countries, but this time, it does so indefinitely. Plaintiffs State of Hawai‘i (“State”), Ismail Elshikh, Ph.D., John Doe 1, John Doe 2, and the Muslim Association of Hawaii, Inc., seek a nationwide temporary restraining order (“TRO”) that would prohibit Defendants[3] from enforcing and implementing Sections 2(a), (b), (c), (e), (g), and (h) before EO-3 takes effect. Pls.' Mot. for TRO 1, ECF No. 368.[4] The Court briefly recounts the history of the Executive Orders and related litigation.

         A. The Executive Orders and Related Litigation

         On January 27, 2017, the President signed an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.” Exec. Order 13, 769, 82 Fed. Reg. 8977 (Jan. 27, 2017) [hereinafter EO-1]. EO-1's stated purpose was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Id. EO-1 took immediate effect and was challenged in several venues shortly after it issued. On February 3, 2017, a federal district court granted a nationwide TRO enjoining EO-1. Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). On February 9, 2017, the Ninth Circuit denied the Government's emergency motion for a stay of that injunction. Washington v. Trump, 847 F.3d 1151, 1161-64 (9th Cir. 2017) (per curiam), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017). As described by a subsequent Ninth Circuit panel, “[r]ather than continue with the litigation, the Government filed an unopposed motion to voluntarily dismiss the underlying appeal [of EO-1] after the President signed EO2. On March 8, 2017, this court granted that motion, which substantially ended the story of EO1.” Hawaii, 859 F.3d at 757.

         On March 6, 2017, the President issued EO-2, which was designed to take effect on March 16, 2017. 82 Fed. Reg. 13209 (Mar. 6, 2017). Among other things, EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about their nationals seeking entry into the United States. See EO-2 § 2(a). EO-2 directed the Secretary to report those findings to the President, after which nations identified as “deficient” would have an opportunity to alter their practices, prior to the Secretary recommending entry restrictions. Id. §§ 2(d)-(f).

         During this global review, EO-2 contemplated a temporary, 90-day suspension on the entry of certain foreign nationals from six countries-Iran, Libya, Somalia, Sudan, Syria, and Yemen. Id. § 2(c). That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by this Court and by a federal district court in Maryland. See Hawaii v. Trump, 245 F.Supp.3d 1227 (D. Haw. 2017)[5]; Int'l Refugee Assistance Project (“IRAP”) v. Trump, 241 F.Supp.3d 539 (D. Md. 2017). Those injunctions were affirmed in relevant part by the respective courts of appeals. See Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), as amended (May 31, 2017). The Supreme Court granted certiorari in both cases and left the injunctions in place pending its review, except as to persons who lacked a “credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 137 S.Ct. 2080, 2088 (2017).[6]

         B. EO-3

         The President signed EO-3 on September 24, 2017. EO-3's stated policy is to protect United States “citizens from terrorist attacks and other public-safety threats, ” by preventing “foreign nationals who may . . . pose a safety threat . . . from entering the United States.”[7] EO-3 pmbl. EO-3 declares that “[s]creening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy.” EO-3 § 1(a). Further, because “[g]overnments manage the identity and travel documents of their nationals and residents, ” it is “the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.” Id. § 1(b).

         As a result of the global reviews undertaken by the Secretary of Homeland Security in consultation with the Secretary of State and the Director of National Intelligence, and following a 50-day “engagement period” conducted by the Department of State, the Acting Secretary of Homeland Security submitted a September 15, 2017 report to the President recommending restrictions on the entry of nationals from specified countries. Id. § 1(c)-(h). The President found that, “absent the measures set forth in [EO-3], the immigrant and nonimmigrant entry in the United States of persons described in section 2 of [EO-3] would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.” EO-3 pmbl.

         Section 2 of EO-3 indefinitely bans immigration into the United States by nationals of seven countries: Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea. EO-3 also imposes restrictions on the issuance of certain nonimmigrant visas to nationals of six of those countries. It bans the issuance of all nonimmigrant visas except student (F and M) and exchange (J) visas to nationals of Iran, and it bans the issuance of business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas to nationals of Chad, Libya, and Yemen. EO-3 §§ 2(a)(ii), (c)(ii), (g)(ii). EO-3 suspends the issuance of business, tourist, and business-tourist visas to specific Venezuelan government officials and their families, and bars the receipt of nonimmigrant visas by nationals of North Korea and Syria. Id. §§ 2(d)(ii), (e)(ii), (f)(ii).

         EO-3, like its predecessor, provides for discretionary case-by-case waivers. Id. § 3(c). The restrictions on entry became effective immediately for foreign nationals previously restricted under EO-2 and the Supreme Court's stay order, but for all other covered persons, the restrictions become effective on October 18, 2017 at 12:01 a.m. eastern daylight time. EO-3 §§ 7(a), (b).

         II. Plaintiffs' Motion For TRO

         Plaintiffs' Third Amended Complaint (ECF No. 381) and Motion for TRO (ECF No. 368) contend that portions of the newest entry ban suffer from the same infirmities as the enjoined provisions of EO-2 § 2.[8] They note that the President “has never renounced or repudiated his calls for a ban on Muslim immigration.” TAC ¶ 88. Plaintiffs observe that, in the time since this Court examined EO-2, the record has only gotten worse. See Pls.' Mem. in Supp. 31, ECF. No. 368-1; TAC ¶¶ 84-88.[9]

         The State asserts that EO-3 inflicts statutory and constitutional injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. TAC ¶¶ 14- 32. Additional Plaintiffs John Doe 1 and John Doe 2 have family members who will not be able to travel to the United States. TAC ¶¶ 33-41. The Muslim Association of Hawaii is a non-profit entity that operates mosques on three islands in the State of Hawai‘i and includes members from Syria, Somalia, Iran, Yemen, and Libya who are naturalized United States citizens or lawful permanent residents. TAC ¶¶ 42-45.

         Plaintiffs ask the Court to temporarily enjoin on a nationwide basis the implementation and enforcement of EO-3 Sections 2(a), (b), (c), (e), (g), and (h) before EO-3 takes effect.[10] For the reasons that follow, the Court orders exactly that.


         I. Plaintiffs Satisfy Standing and Justiciability

         A. Article III Standing

         Article III, Section 2 of the Constitution permits federal courts to consider only “cases” and “controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         “At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.” Washington, 847 F.3d at 1159 (citing Lujan, 504 U.S. at 561).

         1. The State Has Standing

         The State alleges standing based upon injuries to its proprietary and quasi-sovereign interests, i.e., in its role as parens patriae. Just as the Ninth Circuit previously concluded in reviewing this Court's order enjoining EO-2, 859 F.3d 741, and a different Ninth Circuit panel found on a similar record in Washington, 847 F.3d 1151, the Court finds that the alleged harms to the State's proprietary interests are sufficient to support standing.[11]

         The State, as the operator of the University of Hawai‘i system, will suffer proprietary injuries stemming from EO-3.[12] The University is an arm of the State. See Haw. Const. art. 10, §§ 5, 6; Haw. Rev. Stat. (“HRS”) § 304A-103. Plaintiffs allege that EO-3 will hinder the University from recruiting and retaining a world-class faculty and student body. TAC ¶¶ 99-102; Decl. of Donald O. Straney ¶¶ 8-15, ECF. No. 370-6. The University has 20 students from the eight countries designated in EO-3, and has already received five new graduate applications from students in those countries for the Spring 2018 Term. Straney Decl. ¶ 13. It also has multiple faculty members and scholars from the designated countries and uncertainty regarding the entry ban “threatens the University's recruitment, educational programming, and educational mission.” Straney Decl. ¶ 8. Indeed, in September 2017, a Syrian journalist scheduled to speak at the University was denied a visa and did not attend a planned lecture, another lecture series planned for November 2017 involving a Syrian national can no longer go forward, and another Syrian journalist offered a scholarship will not likely be able to attend the University if EO-3 is implemented. Decl. of Nandita Sharma ¶¶ 4-9, ECF No. 370-8.

         These types of injuries are nearly indistinguishable from those found to support standing in the Ninth Circuit's controlling decisions in Hawaii and Washington. See Hawaii, 859 F.3d at 765 (“The State's standing can thus be grounded in its proprietary interests as an operator of the University. EO2 harms the State's interests because (1) students and faculty suspended from entry are deterred from studying or teaching at the University; and (2) students who are unable to attend the University will not pay tuition or contribute to a diverse student body.”); Washington, 847 F.3d at 1161 (“The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”).

         As before, the Court “ha[s] no difficulty concluding that the [Plaintiffs'] injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the [law] and an injunction barring its enforcement.” Washington, 847 F.3d at 1161. For purposes of the instant Motion for TRO, the State has preliminarily demonstrated that: (1) its universities will suffer monetary damages and intangible harms; (2) such harms can be sufficiently linked to EO-3; and (3) the State would not suffer the harms to its proprietary interests in the absence of implementation of EO-3. Accordingly, at this early stage of the litigation, the State has satisfied the requirements of Article III standing.

         2. The Individual Plaintiffs Have Standing

         The Court next turns to the three individual Plaintiffs and concludes that they too have standing with respect to the INA-based statutory claims.

         a. Dr. Elshikh

         Dr. Elshikh is an American citizen of Egyptian descent and has been a resident of Hawai‘i for over a decade. Decl. of Ismail Elshikh ¶ 1, ECF No. 370-9. He is the Imam of the Muslim Association of Hawaii and a leader within the State's Islamic community. Elshikh Decl. ¶ 2. Dr. Elshikh's wife is of Syrian descent, and their young children are American citizens. Dr. Elshikh and his family are Muslim. Elshikh Decl. ¶¶ 1, 3. His Syrian mother-in-law recently received an immigrant visa and, in August 2017, came to Hawai‘i to live with his family. Elshikh Decl. ¶ 5. His wife's four brothers are Syrian nationals, currently living in Syria, with plans to visit his family in Hawai‘i in March 2018 to celebrate the birthdays of Dr. Elshikh's three sons. Elshikh Decl. ¶ 6. On October 5, 2017, one of his brothers-in-law filed an application for a nonimmigrant visitor visa. Elshikh Decl. ¶ 6. Dr. Elshikh attests that as a result of EO-3, his family will be denied the company of close relatives solely because of their nationality and religion, which denigrates their faith and makes them feel they are second-class citizens in their own country. Elshikh Decl. ¶ 7.

         Dr. Elshikh seeks to reunite his family members.

By suspending the entry of nationals from the [eight] designated countries, including Syria, [EO-3] operates to delay or prevent the issuance of visas to nationals from those countries, including Dr. Elshikh's [brother]-in-law. Dr. Elshikh has alleged a concrete harm because ...

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