State v. Trump
Decision Date | 13 July 2017 |
Docket Number | CV. NO. 17–00050 DKW–KSC |
Citation | 263 F.Supp.3d 1049 |
Parties | STATE of Hawai'i and Ismail Elshikh, Plaintiffs, v. Donald J. TRUMP, et al., Defendants. |
Court | U.S. District Court — District of Hawaii |
Alexander Bowerman, Sara Solow, pro hac vice, Hogan Lovells U.S. LLP, Philadelphia, PA, Clyde J. Wadsworth, Deirdre Marie–Iha, Donna H. Kalama, Kimberly T. Guidry, Office of the Attorney General, Douglas S.G. Chin, Robert T. Nakatsuji, Attorney General of Hawaii, Honolulu, HI, Colleen Roh Sinzdak, Elizabeth Hagerty, Mitchell Reich, Neal Katyal, pro hac vice, Hogan Lovells U.S. LLP, Washington, DC, Thomas Schmidt, pro hac vice, Hogan Lovells U.S. LLP, New York, NY, for Plaintiff.
Brad P. Rosenberg, Chad A. Readler, Daniel Schwei, Jeffrey B. Wall, Michelle R. Bennett, U.S. Department of Justice, Washington, DC, Edric Ming–Kai Ching, Elliot Enoki, Florence T. Nakakuni, Office of the United States Attorney, Honolulu, HI, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO ENFORCE, OR, IN THE ALTERNATIVE, TO MODIFY PRELIMINARY INJUNCTION
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 , ––– U.S. ––––, 137 S.Ct. 2080, 2088, 198 L.Ed.2d 643 (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.
The Court briefly recounts the factual and procedural background relevant to Plaintiffs' Motion.
On March 15, 2017, the Court temporarily enjoined Sections 2 and 6 of EO–2 nationwide ("TRO"). See Hawaii v. Trump , 241 F.Supp.3d 1119, 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 , 245 F.Supp.3d 1227, 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 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 , 859 F.3d 741, 789 (9th Cir.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., 859 F.3d at 789. 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 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 , 241 F. Supp. 3d 539, 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. Op. at ––––, 137 S.Ct. at 2086. 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," Op. at ––––, 137 S.Ct. at 2087.
Op. at ––––, 137 S.Ct. at 2088.
Id. (internal citations omitted).
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 , 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 ...
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