United States District Court, D. Hawaii
STATE OF HAWAII, ISMAIL ELSHIKH, JOHN DOES 1 & 2, and MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs,
DONALD J. TRUMP, et al ., Defendants.
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
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.
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.
EO-3. 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 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.
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.
The President's Executive Orders
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 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. The Court briefly
recounts the history of the Executive Orders and related
The Executive Orders and Related Litigation
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.
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. §§
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); 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
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.” 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).
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.
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),
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).
Plaintiffs' Motion For TRO
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. 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.
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.
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. For the reasons that follow, the Court
orders exactly that.
Plaintiffs Satisfy Standing and
Article III Standing
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
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).
The State Has Standing
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
State, as the operator of the University of Hawai‘i
system, will suffer proprietary injuries stemming from
EO-3. 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.
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.”).
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.
The Individual Plaintiffs Have Standing
Court next turns to the three individual Plaintiffs and
concludes that they too have standing with respect to the
INA-based statutory claims.
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.
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