State v. Trump

265 F.Supp.3d 1140

STATE of Hawaii, Ismail Elshikh, John Does 1 & 2, and Muslim Association of Hawaii, Inc., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Civil No. 17–00050 DKW–KSC

United States District Court, D. Hawai‘i.

Signed October 17, 2017

Alexander Bowerman, Pro Hac Vice, Sara Solow, Pro Hac Vice, Hogan Lovells U.S. LLP, Philadelphia, PA, Colleen Roh Sinzdak, Pro Hac Vice, Elizabeth Hagerty, Pro Hac Vice, Mitchell Reich, Pro Hac Vice, Neal Katyal, Pro Hac Vice, Reedy C. Swanson, Pro Hac Vice, Sundeep Iyer, Pro Hac Vice, Yuri Fuchs, Pro Hac Vice, Hogan Lovells U.S. LLP, Washington, DC, Clyde J. Wadsworth, Deirdre Marie–Iha, Kaliko'onalani D. Fernandes, Kevin M. Richardson, Kimberly T. Guidry, Robert T. Nakatsuji, Office of the Attorney General, Donna H. Kalama, State of Hawaii, Major Litigation Unit, Douglas S.G. Chin, Attorney General of Hawaii Dept of the Attorney General, Honolulu, HI, Thomas Schmidt, Pro Hac Vice, Hogan Lovells U.S. LLP, New York, NY, for Plaintiffs.

Brad P. Rosenberg, Chad A. Readler, Daniel Schwei, Michelle R. Bennett, U.S. Department of Justice, Jeffrey B. Wall, U.S. Department of Justice Office of the Solicitor General, Washington, DC, Edric Ming-Kai Ching, Elliot Enoki, Florence T. Nakakuni, Office of the United States Attorney, Honolulu, HI, for Defendants.

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

Derrick K. Watson, United States District Judge

INTRODUCTION

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 countries² 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.

BACKGROUND

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 Defendants³ 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 , ––– U.S. ––––, 137 S.Ct. 2080, 2088, 198 L.Ed.2d 643 (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 ...