Hawaii v. Trump - Opposition Brief
Hawaii v. Trump - Opposition Brief
Hawaii v. Trump - Opposition Brief
6758
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 514-3374; Fax: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII and No. 1:17-cv-00050-DKW-
ISMAIL ELSHIKH, KSC
Plaintiffs, DEFENDANTS
v. OPPOSION TO MOTION
TO ENFORCE OR, IN
DONALD J. TRUMP, in his official
THE ALTERNATIVE, TO
capacity as President of the United States;
MODIFY PRELIMINARY
U.S. DEPARTMENT OF HOMELAND
INJUNCTION
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security; Judge: Hon. Derrick K.
U.S. DEPARTMENT OF STATE; REX Watson
TILLERSON, in his official capacity as
Secretary of State; and the UNITED Related Documents:
STATES OF AMERICA, Dkt. No. 328
Defendants.
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TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1
ARGUMENT .......................................................................................................... 3
CONCLUSION ..................................................................................................... 15
i
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TABLE OF AUTHORITIES
CASES
Kleindienst v. Mandel,
408 U.S. 753 (1972) .............................................................................................12
Swenson v. Stidham,
410 U.S. 904 (1973) ...............................................................................................4
STATUTES
8 U.S.C. 1101(a)(15)(k) ..........................................................................................5
ii
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REGULATIONS
iii
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Exec. Order 13,780, 82 Fed. Reg. 13,209 (March 6, 2017) ............................ passim
OTHER AUTHORITIES
Stephen M. Shapiro,
Supreme Court Practice (10th ed. 2013) ................................................................4
iv
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INTRODUCTION
Supreme Court is the appropriate court to provide definitive guidance on the scope
of its stay. Rather than seeking relief from that Court, Plaintiffs took an improper
appeal that was summarily dismissed. Returning now to this Court, they repackage
injunction. This Court, however, lacks authority to modify the injunction to grant
additional relief beyond what the Supreme Court permitted. And because Plaintiffs
are not really seeking enforcement as to them, but instead are effectively
attempting to clarify the Supreme Courts stay on behalf of third parties, Plaintiffs
should address their request to the Supreme Court in the first instance.
Regardless, there is no basis to provide the relief that Plaintiffs seek. As the
the Immigration and Nationality Act (INA) as it relates to eligibility for a family-
based immigrant visa, and from the terms of the Executive Order itself. Plaintiffs
instead press a free-form definition of their own making. To the extent Plaintiffs
address the INA, they cite provisions and regulations that are either inapposite or
Nor are Plaintiffs entitled to any relief regarding the refugee provisions of the
Executive Order. Indeed, Plaintiffs blanket rule that every assurance creates a
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would eviscerate the Supreme Courts holding regarding Section 6(a). But as the
and those agencies. Nor do Plaintiffs dispute that resettlement agencies typically
have no contact with refugees prior to their admission to the United States. Finally,
the remaining relief that Plaintiffs seek is not ripe, assumes a dispute where none
might exist, and conflicts with the analysis of the Supreme Courts decision.1
For the reasons set forth below and in the Governments prior filing, see ECF
No. 301 (Gov. Mem.), this Court should deny Plaintiffs motion. Should this
Court grant any relief to Plaintiffs, the Government requests that the Court stay that
relief pending the later of the prompt filing and disposition of a request by the
Government to the Supreme Court for clarification of its stay (and appeal to the
Ninth Circuit if the Supreme Court denies the clarification request), or the prompt
notification by the Government that it does not intend to seek any such further
review.
1
Plaintiffs no longer argue that the Government is improperly applying the Supreme
Courts credible claim standard.
2
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ARGUMENT
in the alternative, to modify this Courts preliminary injunction. See Pls. Mem. at
4-7, ECF No. 328-1. As an initial matter, this Court lacks jurisdiction to modify its
preliminary injunction, except to maintain the status quo under the Supreme Courts
ruling, because certiorari has been granted in this case. See Prudential Real Estate
Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000).
Nor should this Court grant Plaintiffs putative motion to enforce the
injunction. Plaintiffs do not seek to protect themselves but, rather, third-party aliens
abroad who fall outside the scope of the Supreme Courts stay; their arguments are
thus indistinguishable from those in their prior motion to clarify. This dispute
remains a quarrel over the meaning and intent of words and phrases authored not
by this Court, but by the Supreme Court. Order at 2, ECF No. 322. Resolving the
motion will, as before, require this Court to substitute its own understanding of the
Accordingly, the appropriate course is for Plaintiffs to seek relief from the
Supreme Court in the first instance. This Court correctly noted that originating
courts are best positioned to interpret their own orders. See id. The Supreme Court
3
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undoubtedly has authority to clarify or modify its own rulings and has done so even
after issuing an opinion on the merits. See Swenson v. Stidham, 410 U.S. 904 (1973);
Stephen M. Shapiro, Supreme Court Practice 841 (10th ed. 2013) (where a party
before the Supreme Court is not seeking a change in the Courts judgment on the
merits, it may file a motion to clarify or modify an opinion of the Court). Thus, the
Supreme Court can clarify or amend its own stay in this case, which is still pending
before it.
To the extent this Court nonetheless grants any relief to Plaintiffs, it should
grant an interim stay of that relief. In partially granting the Governments request
for a stay, the Supreme Court recognized that [t]he interest in preserving national
security is an urgent objective of the highest order and that preventing the
unconnected to the United States would appreciably injure its interests. Trump v.
Intl Refugee Assistance Project, 137 S. Ct. 2080, 2017 WL 2722580, at *6 (U.S.
June 26, 2017) (per curiam). Because the parties dispute the scope of the stay, any
immediate relief this Court may grant would threaten these same interests,
potentially upset the equitable balance that the Supreme Court struck, and create
Order consistent with court orders. Indeed, a stay is particularly warranted because
4
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Plaintiffs could have avoided all of this by seeking relief directly from the Supreme
to fall outside the scope of the Supreme Courts stay. Id. at *7 (emphasis added).
The Governments definition draws from the INA itself, which provides the
definitions of familial relationships that are relevant here. See Gov. Mem. at 7-13.
(privileging sons and daughters (age 21 or older) of U.S. citizens; siblings of U.S.
citizens; and spouses, unmarried children under the age of 21, and unmarried sons
2
Plaintiffs previously argued that some of this authority is inapposite to the extent it
involves the allocation of a numerically-limited number of visas. See Pls. Reply at
6, ECF No. 303. Regardless of the number of visas to be issued, all of these
provisions draw lines in the context of determining which familial relationships are
close enough to petition for a visa under the INA. That is exactly the type of line-
drawing that the Supreme Courts opinion requires.
5
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statutory scheme, Plaintiffs draw strained analogies from cases involving local
housing ordinances and prisoner civil rights. See Pls. Mem. at 8. Even these non-
Felipe, No. 94 Cr. 395, 1997 WL 278111, at *1 (S.D.N.Y. May 22, 1997) (noting
concession that a sister-in-law and a niece did not fit the normal definition of
To the extent Plaintiffs address the INA at all, they rely on a handful of INA
provisions or regulations that are not relevant or that otherwise reflect narrow
exceptions to the general rules. For example, Plaintiffs claim that a provision in the
however, does not directly address who may petition for a visa, but instead who may
And even in that context, the provision reflects the distinctions between close
and extended family that the Government draws here. 8 U.S.C. 1183a(f)(1)(D)
and (f)(4) require that the financial sponsor be the relative who is petitioning under
(or a relative with a significant ownership interest in the entity filing an employment-
based petition). See id. 1153(a)-(b). Only spouses, parents, sons, daughters, and
6
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siblings may file family-sponsored petitions, and the eligible relatives in the
employment-based context are limited to the same family members. See id.
and siblings); see also Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg.
35,732; 35,733 (June 21, 2006) (defining relative, for purposes of the affidavit of
support requirement, to include only those family members who can file alien
relative visa petitions). Only when a petitioner has died and the petition either
Security (DHS) reinstates the petition on humanitarian grounds can one of the
extended family members that Plaintiffs cite serve as a financial sponsor under this
provision. See Pls. Mem. at 9; 8 U.S.C. 1183a(f)(5)(B)(i), (ii). And even then,
petition for a visa applicant. Cf. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191,
general rules on which the Government has relied. For example, Plaintiffs cite a
3
Plaintiffs also note that a juvenile alien may be released from custody to an aunt,
uncle, or grandparent. See Pls. Mem. at 9-10. While that may be true in certain
circumstances, that says nothing about how immigration law treats which familial
relationships may petition for visas for certain family members.
7
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eligible for T visas (for victims of human trafficking), but only if DHS determines
that they face a present danger of retaliation as a result of the principals escape
from the severe form of trafficking in persons or cooperation with law enforcement.
Plaintiffs also cite DHS regulations that allow an individual to apply for
United States, Pls. Mem at 10 (quoting 69 Fed. Reg. 69,480, 69,488 (Nov. 29,
2004)), but those provisions were compelled by a negotiated agreement with Canada
that included broader familial definitions than typically available under the INA. See
allows an application on behalf of a grandchild, see Pls. Mem. at 10, but only under
The USA PATRIOT Acts provisions, see Pls. Mem. at 10, similarly are
applicable only if the grandchild is an orphan and both . . . parents died as a direct
result of . . . [the 9/11 attacks], and at least one of the parents was, on September
10, 2001, a U.S. Citizen or Lawful Permanent Resident. Pub. L. No. 107-56,
8
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Rather than all these narrow and contingent exceptions that Plaintiffs invoke,
Supreme Courts use of the phrase close familial relationship is nearly identical to
providing further support for the Governments definition. And even if there were
Plaintiffs further argue that, because the Supreme Court included Dr.
Elshikhs mother-in-law within the scope of its stay, it also must have intended that
grandparents, aunts, cousins, and the like should be included. See Pls. Mem. at 8.
Plaintiffs do not point to any support in the Supreme Courts opinion for that
position, and there is none. As the Government previously noted, the Supreme Court
merely examined [t]he facts of the[] cases presented to it in deciding that Dr.
2722580, at *7, and the Government is treating all parents-in-law (and children-in-
law) as being within the definition of close famil[y]. See Gov. Mem. at 11-12 &
argument that, as was factually the case with Dr. Elshikhs mother-in-law, parents-
9
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in-law of persons in the United States will often also be parents of persons in the
United States. See Elshikh Decl. 1, 4, ECF No. 66-1. This places the parent-in-
law relationship in a fundamentally different position from the other relatives that
Plaintiffs seek to have included, including siblings-in-law. See Gov. Mem. at 12 n.2.
agency, by itself, does not create a bona fide relationship between a refugee and
a[n] . . . entity in the United States. Trump, 2017 WL 2722580, at *7; see Gov.
Mem. at 14-20. Plaintiffs nonetheless contend that the terms of assurances establish
advance for a refugees arrival pursuant to the assurance. See Pls. Mem. at 11-12.
Plaintiffs fail to come to grips with the fact that their position would eviscerate
23,958 refugees have been assured as of June 30, which is more than the number
that would likely be scheduled to enter the United States in the next 120 days. See
Gov. Mem. at 17-18; Bartlett Decl. 17, ECF No. 301-1. Plaintiffs previously
responded that this cohort is a fraction of the 200,000 individuals seeking refugee
status. Pls. Reply at 12. But the total number of individuals seeking refugee status
is irrelevant, as the Executive Order suspends entry of refugees for only the next 120
days. Virtually all of the refugees likely to enter in the next 120 days already have
10
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create a qualifying bona fide relationship, the Supreme Courts order allowing
suspension to take effect for certain refugees, Trump, 2017 WL 2722580, at *7,
Moreover, Plaintiffs miss the critical point that the various steps that a
resettlement agency may take before a refugee arrives are all pursuant to (and
required by) a contract the resettlement agency enters into with the Government. See
Pls. Mem. at 12; Gov. Mem. at 14-15; Bartlett Decl. 15 & Att. 2. That a
establish a qualifying relationship with refugees. Plaintiffs also do not dispute that
resettlement agencies typically have no direct contact with refugees before their
arrival in the United States. See Gov. Mem. at 15; Bartlett Decl. 21.
they have devoted private resources to refugee work and may lose federal funding.
See Pls. Mem. at 12. Even assuming this to be true, any such harm flows not from
an independent, pre-existing relationship with the refugee, but from the agencies
4
Plaintiffs previously argued that the Governments guidance indicates that visa
applicants who have a relationship with the U.S. Government itself have a bona fide
relationship as a result. See Pls. Reply at 10. Plaintiffs have misread that guidance.
https://travel.state.gov/content/visas/en/immigrate/iraqi-afghan-translator.html.
The SI and SQ visas that Plaintiffs reference are for Iraqi and Afghani nationals who
11
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Plaintiffs dismiss the fact that resettlement agencies do not typically interact
with refugees prior to arrival by noting that lecturers can be invited through agents.
Pls. Mem. at 13. The analogy is inapt. Agents inviting lecturers do so on behalf of
the private organization that hired them. Resettlement agencies, in contrast, provide
relied upon the First Amendment in noting that excluding lecturers could affect the
Kleindienst v. Mandel, 408 U.S. 753, 763-65 (1972)). Plaintiffs alternatively note
that a refugee and a son-in-law may have never met, see Pls. Mem. at 13, but that
standards for individuals and entities, see Trump, 2017 WL 2722580, at *6-7, there
is an obvious difference between an actual family member whom one has not yet
met and a potential third-party with whom there has not been any direct contact.
Finally, Plaintiffs assert that, if Hawaii has a bona fide relationship with
refugees that are to be resettled in the State, then resettlement agencies that have
worked with the U.S. Government in those locations, and thus do not even fall within
the scope of Section 2(c) of the Executive Order (which applies neither to Iraq nor
Afghanistan). Moreover, the Q&A cited by Plaintiffs, Opp. Ex. A, ECF No. 301-2,
at 2, specifically notes that applicants for other special immigrant visas of the type
that Plaintiffs discuss may be subject to the E.O. unless they satisfy the
relationship standards adopted in the Supreme Courts stay.
12
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provided an assurance must have the necessary relationship because their connection
to an assured refugee is less removed than the States. See Pls. Mem. at 13. This
argument, however, assumes that a State can establish the requisite relationship with
a refugee merely because the refugee will be resettled within its borders. The
Supreme Court made no such determination: Unlike its discussion of Section 2(c),
its discussion of Section 6 conspicuously did not find that Hawaii or Dr. Elshikh had
the requisite relationship with any refugee. See Trump, 2017 WL 2722580, at *7.
As with a mere agency assurance, such a conclusion would render the Supreme
Courts stay meaningless, as all refugees will be resettled within some State.
IV. Plaintiffs Other Challenges Regarding Refugees Are Not Ripe and
Mischaracterize the Governments Guidance.
Plaintiffs also seek to have this Court enforce its preliminary injunction as
to other refugee-related issues, but these issues are not ripe and there is no credible
allegation that the Government is violating the Supreme Courts stay. Plaintiffs
would have this Court modify its injunction by adding requirements that, at best,
appear nowhere in the Supreme Courts opinion or, at worst, contradict that opinion.
has yet to determine whether [refugees] who have already booked travel may
enter the United States after July 6. Pls. Mem. at 13-14 (quoting Gov. Mem. at
18-19). The Government has now provided guidance on this issue: All refugees
13
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with travel bookings through July 12 may travel as planned, and any refugee with
travel bookings after July 12 may travel pursuant to those bookings if they have a
credible claim to a bona fide relationship with a person or entity in the United States.
Supp. Hetfield Decl. Ex. A 1, ECF No. 336-3. Moreover, Plaintiffs bootstrap
argument that refugees with travel bookings have a qualifying relationship due to
the assurance-related services they will receivesuch as a place to live and other
arrangementsfails for the same reasons that their assurance argument fails.5
Finally, Plaintiffs seek to have this Court enforce its injunction by requiring
the Government to automatically treat all client relationships with legal services
organizations as protected by the injunction. See Pls. Mem. at 14-15. But as the
organization and refugee to refugee. See Gov. Mem. at 21. Nothing in the Supreme
Courts stay required the Government to treat all such relationships alike or to
categorically assume that all such relationships automatically meet the Courts
between the organization and refugee); to the contrary, the Court specifically noted,
for example, that a relationship created for the purpose of evading EO-2 would
5
Plaintiffs also quarrel over State Department guidance temporarily pausing travel
bookings, see Pls. Mem. at 14, but updated guidance reflects that the Department
will issue guidance the week of July 10 on when new ABNs may be scheduled for
new cases with bona fide relationships. Supp. Hetfield Decl. Ex. A 14.
14
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not qualify and cited the situation of an organization improperly contacting foreign
nationals from the designated countries, add[ing] them to client lists, and then
secur[ing] their entry by claiming injury from their exclusion. Trump, 2017 WL
in contrast, would have the Court effectively (and improperly) broaden the scope of
CONCLUSION
The Court should deny Plaintiffs motion. Should this Court grant any relief
to Plaintiffs, the Government requests that the Court grant an interim stay of that
6
Plaintiffs also claim that three categories of refugee applicants are exempt from
the Executive Order: U.S.-affiliated Iraqis at risk of persecution and participants
in the Lautenberg Program and the Central American Minors Program. Pls. Mem.
at 15 n.6. But while some applicants through the identified programs would have
qualifying bona fide relationships, others would not. For the Central American
Minors Program, some caregivers may not have a sufficiently close relationship to
a U.S.-based parent to qualify as a close family member. See Gov. Mem. at 19
n.6. Likewise, the Lautenberg Program, which was established in 599D and 599E
of the Foreign Operations, Export Financing, and Related Appropriations Act, Fiscal
Year 1990, Pub. L. No. 101-167, 103 Stat. 1195 (1989), includes grandparents and
grandchildren in the family relationship criteria for applicants. And the Iraqi Direct
Access Program includes certain nonqualifying relationships with the U.S.
Government itself, as well as past (not current) relationships. See National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, Title XII, Subtitle C,
1243(a)(1)-(4), 122 Stat. 3. In any event, the mere fact that the Government has
not categorically exempted these programs does not mean that the Government is
not complying with the injunction or that qualifying participants in these programs
would be subject to the Executive Order.
15
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JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
JOHN R. TYLER
Assistant Director, Federal Programs Branch
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CERTIFICATE OF SERVICE
I hereby certify that, on July 11, 2017, by the methods of service noted
below, a true and correct copy of the foregoing was served on the following at
their last known addresses: