State of Hawaii v. Trump

Filing 116

MOTION for Leave to File Brief of Human Rights First, KIND (Kids in Need of Defense), Tahirih Justice Center, and HIAS as Amici Curiae in Support of Plaintiffs' Motion for Temporary Restraining Order Lisa W. Munger appearing for Amicus Parties HIAS, Human Rights First, KIND (Kids in Need of Defense), Tahirih Justice Center (Attachments: # 1 Brief of Amici Curiae, # 2 Certificate of Service)(Munger, Lisa)

GOODSILL ANDERSON QUINN & STIFEL SIMPSON THACHER & BARTLETT
A LIMITED LIABILITY LAW PARTNERSHIP LLP LLP
LISA WOODS MUNGER
[e-mail]
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]

3858-0

ALAN C. TURNER*
[e-mail]
425 Lexington Avenue
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
HARRISON J. (BUZZ) FRAHN IV*
[e-mail]
2475 Hanover Street
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

Attorneys for Amici Curiae
HUMAN RIGHTS FIRST,
KIND (Kids in Need of Defense),
TAHIRIH JUSTICE CENTER, and
HIAS

*Pro hac vice application pending

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his
official capacity as Secretary of Homeland
Security; U.S. DEPARTMENT OF
STATE; REX TILLERSON, in his official
capacity as Secretary of State; and the
UNITED STATES OF AMERICA,
Defendants.

CV. NO. 1:17-cv-00050-DKW-KSC
BRIEF OF AMICI CURIAE HUMAN
RIGHTS FIRST, KIND (KIDS IN
NEED OF DEFENSE), TAHIRIH
JUSTICE CENTER, AND HIAS IN
SUPPORT OF PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER

TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE .............................................................................1 
SUMMARY OF ARGUMENT .................................................................................4 
ARGUMENT .............................................................................................................7 
I. 

THE COURTS SERVE A CRITICAL ROLE IN REVIEWING
EXECUTIVE ACTIONS ..........................................................................7 

II. 

THE EXECUTIVE ORDER WILL CAUSE IRREPARABLE
HARM .....................................................................................................11 

CONCLUSION ........................................................................................................18 

i

TABLE OF AUTHORITIES
Cases 
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005)..................................................................................9
Am.-Arab Anti-Discrimination Comm. v. Reno,
70 F.3d 1045 (9th Cir. 1995)................................................................................10
Aptheker v. Sec’y of State,
378 U.S. 500 (1964) ...............................................................................................8
Aziz v. Trump,
— F. Supp. 3d. —, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .........................11
Baker v. Carr,
369 U.S. 186 (1962) ...............................................................................................8
Bolling v. Sharpe,
347 U.S. 497 (1954) .............................................................................................13
Boumediene v. Bush,
553 U.S. 723 (2008) .............................................................................................10
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................................12
Ex parte Milligan,
71 U.S. 2 (1866) .....................................................................................................9
Ex parte Mitsuye Endo,
323 U.S. 283 (1944) ...............................................................................................8
Ex parte Quirin,
317 U.S. 1 (1942) ...................................................................................................9
Galvan v. Press,
347 U.S. 522 (1954) ...............................................................................................9
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) .............................................................................................11
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ...................................................................................................8
INS v. Chadha,
462 U.S. 919 (1983) ...........................................................................................8, 9

ii

Johnson v. Robison,
415 U.S. 361 (1974) .............................................................................................11
Latta v. Otter,
771 F.3d 496 (9th Cir. 2014)................................................................................12
Marbury v. Madison,
5 U.S. 137 (1803) ...............................................................................................5, 7
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012)................................................................................12
Meyer v. Nebraska,
262 U.S. 390 (1923) .............................................................................................12
Moore v. City of E. Cleveland,
431 U.S. 494 (1977) .............................................................................................12
Shahla v. INS,
749 F.2d 561 (9th Cir. 1984)................................................................................10
United States v. Robel,
389 U.S. 258 (1967) ...............................................................................................9
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..................................................................... passim
Zadvydas v. Davis,
533 U.S. 678 (2001) ...............................................................................................9
Zemel v. Rusk,
381 U.S. 1 (1965) ...................................................................................................8
Zivotofsky v. Clinton,
566 U.S. 189 (2012) ...............................................................................................8
Statutes 
8 U.S.C. § 1182(f) ....................................................................................................10

iii

INTERESTS OF AMICI CURIAE
Human Rights First (formerly known as the Lawyers Committee for Human
Rights) has worked since 1978 to promote fundamental human rights and to ensure
protection of refugees’ rights, including the right to seek and enjoy asylum. Human
Rights First grounds its refugee protection work in the standards set forth in the 1951
Convention Relating to the Status of Refugees (the “Refugee Convention”), the 1967
Protocol Relating to the Status of Refugees (the “1967 Protocol”), the Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
and other international human rights instruments, and advocates adherence to these
standards in the policies, practices, and laws of the United States government.
Human Rights First also operates one of the largest pro bono asylum representation
programs in the country, providing legal representation without charge to hundreds of
indigent asylum applicants each year. Human Rights First is committed to ensuring
that all protections granted under the 1951 Refugee Convention and the 1967
Protocol remain available to refugees and asylum seekers in the United States.
Kids in Need of Defense (KIND) is a national non-profit organization that
works to ensure that no child faces immigration court alone. KIND provides direct
representation, as well as working in partnership with law firms, corporate legal
departments, law schools, and bar associations that provide pro bono representation,
to unaccompanied children in their removal proceedings. KIND advocates for

1

changes in law, policy, and practices to improve the protection of unaccompanied
children in the United States. KIND staff and KIND pro bono attorneys seek to
ensure that every child in removal proceedings receives the full measure of due
process protections that the law affords. Accordingly, KIND respectfully joins this
amicus brief, in the interest of improving consistency and even-handedness in the
treatment of unaccompanied children who come before our immigration courts.
Tahirih Justice Center (“Tahirih”) is a national non-profit that has served
courageous individuals fleeing violence since 1997. Through direct services, policy
advocacy, and training and education, Tahirih protects immigrant women and girls
and promotes a world where women and girls enjoy equality and live in safety and
dignity. Tahirih serves immigrant women and girls who have rejected violence, but
face incredible obstacles to justice, including language barriers, lack of resources, and
a complex immigration system.
Founded in 1881, HIAS is the world’s oldest refugee resettlement agency, and
the only Jewish refugee resettlement agency. HIAS assists those who are persecuted
because of who they are, helping refugees find welcome, safety, and freedom around
the world. While originally founded to protect Jewish people fleeing pogroms in
Russia and Eastern Europe, today, most of the people HIAS serves are not Jewish.
Since HIAS’s founding, it has helped more than 4.5 million refugees start new lives.
In 2016, HIAS aided 350,000 refugees, many of them Muslim. HIAS is currently

2

one of nine federally designated organizations that resettle refugees, in collaboration
with the Department of State and the Department of Health and Human Services.
HIAS also provides legal services to immigrants seeking humanitarian protection,
including asylum, in the United States. The Executive Order directly harms HIAS
and its clients, and prevents HIAS from carrying out its mission to protect people
fleeing persecution, and their families.
All amici have a direct interest in the outcome of this case.1

1

Plaintiffs have consented to the filing of this brief, and Defendants have taken no
position. No party’s counsel authored any part of this brief, and no party or person
other than amici, their members, or their counsel made any monetary contribution
intended to fund preparation or submission of this brief.

3

SUMMARY OF ARGUMENT
As President George Washington wrote to a religious minority community
containing many immigrants in 1790, “the Government of the United States . . . gives
to bigotry no sanction, to persecution no assistance.”2 From as early as the arrival of
the Pilgrims, this land has been a haven for immigrants, regardless of their faith and
country of birth. Freedom of religion and freedom from the establishment of religion
are, of course, enshrined in our First Amendment.
The President’s latest Executive Order, issued on March 6, 2017 and entitled
“Protecting The Nation From Foreign Terrorist Entry Into The United States” (the
“Executive Order”), hews away at these foundations of our nation, baselessly
labelling more than one hundred and eighty million citizens of Iran, Sudan, Syria,
Somalia, Libya, and Yemen as terrorist threats, and banning them from traveling here
based solely on their national origin.3 That the targeted countries are all
predominantly Muslim nations,4 and that the President repeatedly campaigned on a
2

From George Washington to the Hebrew Congregation in Newport, Rhode Island,
18 August 1790, NATIONAL ARCHIVES,
https://founders.archives.gov/documents/Washington/05-06-02-0135.
3

Country Comparison :: Population, U.S. CENTRAL INTELLIGENCE AGENCY WORLD
FACTBOOK, https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2119rank.html (citing country populations).
4

The six targeted countries are all at least 90% Muslim, and some are 99% Muslim.
Muslim Population by Country, PEW RESEARCH CENTER (Jan. 27, 2011),
http://www.pewforum.org/2011/01/27/table-muslim-population-by-country; About
Sudan, United Nations Development Programme,
http://www.sd.undp.org/content/sudan/en/home/countryinfo.html.

4

promise to ban the entry of Muslims, suggests that the Order was motivated at least in
part by an unconstitutional disfavoring of Islam. This is not who we are as a country,
and this is not allowed by our Constitution. The Executive Order also violates the
Immigration and Nationality Act’s prohibition on discrimination on the basis of
national origin, for the reasons set forth in Plaintiffs’ motion for a temporary
restraining order.
Contrary to the Government’s arguments to other courts that the President’s
exercise of powers concerning immigration and national security is “unreviewable,”5
and assertions by the President’s senior policy advisor that those powers “will not be
questioned,”6 this Court is indeed empowered to review and determine the legality of
the Executive Order. The President’s powers are derived from and circumscribed by
the Constitution and delegated Congressional authority. Because we live in a nation
“of laws and not men,” Marbury v. Madison, 5 U.S. 137, 163 (1803), it is the
responsibility of federal courts to determine when that authority has been exceeded.
Judicial review of executive action is part of the “fundamental structure of our
5

Emergency Mot. Under Cir. Rule 27-3 for Admin. Stay & Mot. for Stay Pending
Appeal at 2, Washington v. Trump, 847 F.3d 1151 (9th Cir. Feb. 4, 2017) (No. 1735105), ECF No. 14.
6

Aaron Blake, Stephen Miller’s authoritarian declaration: Trump’s national
security actions ‘will not be questioned,’ WASH. POST, Feb. 13, 2017,
https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/stephen-millersaudacious-controversial-declaration-trumps-national-security-actions-will-not-bequestioned (reporting televised public statements by President Trump’s senior
policy adviser, Stephen Miller, regarding the Executive Order).

5

constitutional democracy,” Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir.
2017) (per curiam), and now, more than ever, it is important to reaffirm this vital
check and balance. This Court has the authority—and, in fact, the duty—to review
the President’s Executive Order for compliance with the Constitution and federal law.
As organizations committed to serving and advocating on behalf of the
nation’s immigrant communities, amici urge this Court to recognize the irreparable
harm that those communities and others face under the Executive Order. Every U.S.
resident who has family members in one of the targeted countries will be deprived of
visits from those family members, as well as the ability to sponsor derivative
immigrant visas. Our nation’s colleges and universities will be unable to admit
students or recruit faculty from the targeted countries, hindering their ability to foster
and maintain a rich, diverse, and inclusive educational environment. And employers
in the public and private sectors will be unable to hire workers from the targeted
countries, to the detriment of public institutions and businesses alike.
Aside from these concrete and tangible harms, the Executive Order works
another less tangible but no less insidious harm: the marginalization of entire
communities based on promulgation by Executive action of the false notion that
nationals of the six targeted countries are “the ‘bad’”7 and must be excluded on a
blanket basis in the purported interests of national security. The security rationale
7

See Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017, 5:31 AM),
https://goo.gl/FAEDTd.

6

advanced by the Government is paper-thin, is belied by the President’s own actions in
delaying signing of the new Executive Order (reportedly for publicity reasons), and
cannot mask the religious animus and discriminatory intent that motivated the first
Executive Order and its replacement. The speculative harms advanced by the
Government as the basis for the new Executive Order—which itself seeks to upend
the status quo—are far outweighed by the immediate harms that would be caused by
implementation of the Order. Amici accordingly urge this Court to enjoin
implementation of the Executive Order until its legality and constitutionality can be
resolved on the merits.
ARGUMENT
I.

THE COURTS SERVE A CRITICAL ROLE IN REVIEWING
EXECUTIVE ACTIONS
The judiciary’s foremost obligation in our democratic system is to act as a

check on the unconstitutional excesses of the political branches. Far from
commanding that presidential directives “will not be questioned,” more than two
centuries of precedent instructs that “[i]t is emphatically the province and duty of the
judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177
(1803) (emphasis added). Decisions of the Supreme Court and of this Circuit
emphasize that this judicial duty does not dissipate simply because the challenged
actions relate to immigration or national security, or even where the legislative
branch has delegated significant discretion to the executive. As the Ninth Circuit

7

held in rejecting the Government’s argument that the first Executive Order was
“unreviewable,” a ruling that is binding here, “[t]here is no precedent to support this
claimed unreviewability, which runs contrary to the fundamental structure of our
constitutional democracy.” Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir.
2017) (per curiam).
Executive action does not become immune from review where the President
claims a national security rationale. “[I]t is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.” Baker
v. Carr, 369 U.S. 186, 211 (1962). The Supreme Court recently reaffirmed that
resolving legal challenges to the constitutional authority of one of the three branches
of our federal government “is a familiar judicial exercise,” which cannot be avoided
“merely ‘because the issues have political implications.’” Zivotofsky v. Clinton, 566
U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)); see also
Zemel v. Rusk, 381 U.S. 1, 17 (1965) (denying that the President has “totally
unrestricted freedom of choice” where a statute deals with foreign relations);
Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (upholding constitutional rights
despite national security concerns); Ex parte Mitsuye Endo, 323 U.S. 283 (1944)
(same).
While courts properly accord substantial deference to the political branches
where matters of national security are concerned, see, e.g., Holder v. Humanitarian

8

Law Project, 561 U.S. 1, 33-34 (2010), there is no precedent to support the idea that
courts must grant them complete deference, which would amount to an impermissible
abdication of judicial authority. Cf. Ex parte Quirin, 317 U.S. 1, 19 (1942) (“[I]n
time of war as well as in time of peace, [courts are] to preserve unimpaired the
constitutional safeguards of civil liberty . . . .”); Ex parte Milligan, 71 U.S. 2, 120-21
(1866) (“The Constitution of the United States is a law for rulers and people, equally
in war and in peace . . . under all circumstances.”). Indeed, this Circuit’s precedent is
clear that “courts are not powerless to review the political branches’ actions” when
those actions are premised on national security concerns. Alperin v. Vatican Bank,
410 F.3d 532, 559 n.17 (9th Cir. 2005). As the Supreme Court has noted, “[i]t would
indeed be ironic if, in the name of national defense, we would sanction the subversion
of one of those liberties . . . which makes the defense of the Nation worthwhile.”
United States v. Robel, 389 U.S. 258, 264 (1967).
The judicial duty to review the constitutionality of the Executive’s actions
similarly does not disappear because the policy under consideration deals with
immigration. As the Supreme Court has held, even in the realm of immigration the
President and Congress are “subject to important constitutional limitations.”
Zadvydas v. Davis, 533 U.S. 678, 695 (2001); see also Chadha, 462 U.S. at 940-41
(courts can review “whether Congress has chosen a constitutionally permissible
means of implementing” its power over the regulation of aliens); Galvan v. Press,

9

347 U.S. 522, 531 (1954) (“In the enforcement of [immigration] policies, the
Executive Branch of the Government must respect the procedural safeguards of due
process.”). The Ninth Circuit has squarely held that “‘the judicial branch may
examine whether the political branches have used a foreign policy crisis as an excuse
for treating aliens arbitrarily.’” Am.-Arab Anti-Discrimination Comm. v. Reno, 70
F.3d 1045, 1056 (9th Cir. 1995) (quoting Shahla v. INS, 749 F.2d 561, 563 n.2 (9th
Cir. 1984)); see also Washington, 847 F.3d at 1161.
Finally, even where, as here, Congress has delegated a measure of discretion to
the President, that discretion is not unchecked. Congressional action is itself bounded
by the requirements of the Constitution, and under no circumstance can the
legislature write the executive a blank check to operate free of constitutional
strictures. The Supreme Court has held that the political branches may not “switch
the Constitution on or off at will.” Boumediene v. Bush, 553 U.S. 723, 765 (2008).
Here, the President relies on 8 U.S.C. § 1182(f)8 as the legal basis for the Executive
Order. But that statute’s grant of discretion to the President cannot plausibly be read
to strip the courts of jurisdiction to review the President’s actions. The Supreme
Court has required “‘clear and convincing’ evidence of congressional intent . . .
8

Section 1182(f) provides that “[w]henever the President finds that the entry of any
aliens or of any class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such period as he shall
deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or
nonimmigrants.”

10

before a statute will be construed to restrict access to judicial review.” Johnson v.
Robison, 415 U.S. 361, 373-74 (1974). As another district court recently held in a
case concerning the first Executive Order, “[m]aximum power does not mean
absolute power.” Aziz v. Trump, — F. Supp. 3d. —, 2017 WL 580855, at *6 (E.D.
Va. Feb. 13, 2017) (granting preliminary injunction). Even where the President acts
at the pinnacle of his power, courts still have a role to play in safeguarding individual
rights. The Constitution “most assuredly envisions a role for all three branches when
individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)
(plurality opinion).
Thus, as the Ninth Circuit and the Supreme Court have made crystal clear, this
Court has the authority, and indeed the duty, to review the constitutionality and
legality of Executive actions, including this Executive Order.
II.

THE EXECUTIVE ORDER WILL CAUSE IRREPARABLE HARM
Amici seek to strengthen diversity and promote justice and equality.

Connected by our common humanity, amici believe that protection of the interests of
individuals and organizations affected by the Executive Order reinforces the broader
interests of American society. The individual and organizational harms faced by
these groups are irreparable, weighing in favor of a temporary restraining order.
The harms caused by the deprivation of a constitutional right, no matter how
brief the duration, are by their very nature irreparable. Unlike with merely pecuniary

11

harms, one who suffers a constitutional harm cannot be made whole by post hoc
compensation. That is particularly true where, as here, the harm arises from a
violation of the First Amendment’s Establishment Clause. As the Supreme Court has
recognized, “[t]he loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976) (plurality opinion).9 Given the gravity of the harms to the constitutionally
protected rights to be free of a government-established religion, to the equal
protection of the law, to international travel, and to family integrity, there is no doubt
that the Executive Order threatens irreparable harm to many individuals, families,
and organizations.
U.S. citizens and lawful permanent residents (“LPRs”) with family members in
the six targeted countries will suffer concrete harms to their recognized liberty
interest in maintaining familial relationships. See Moore v. City of E. Cleveland, 431
U.S. 494 (1977). “[T]he Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation’s history and
tradition.” Id. at 503; see also Meyer v. Nebraska, 262 U.S. 390 (1923). Yet under
the Executive Order’s discriminatory nationality-based test, U.S. citizens and LPRs
9

While Elrod dealt with freedom of speech, the Ninth Circuit has recognized that this
reasoning applies to other constitutional rights. See Latta v. Otter, 771 F.3d 496, 500
(9th Cir. 2014) (deprivation of right to marry constitutes an irreparable harm);
Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (violations of Fourth and
Fourteenth Amendments inflict irreparable harm).

12

will be unable to receive visits from loved ones who live in the banned countries or to
sponsor family members from those countries for lawful permanent residence in the
United States. The Executive Order will separate spouses and fiancés across
continents,10 deprive family members of time with ill or elderly relatives,11 and force
overseas visa applicants to miss births, weddings, funerals, and other important
family events. U.S. citizens and LPRs will be forced to choose between career
obligations in the United States and family members in the banned countries.12 By
interfering with familial relations on the basis of national origin, the Executive Order
violates the constitutional rights of these U.S. citizens and LPRs to the equal
protection guarantee inherent in the Due Process Clause of the Fifth Amendment.
See Bolling v. Sharpe, 347 U.S. 497 (1954).13
10

See, e.g., Ex. 1, Decl. of Omid Moghimi; Ex. 2, Decl. of Jane Doe #1. The
declarations cited in and attached to this brief are from pleadings filed on February 8,
2017 by Plaintiffs in Pars Equality Center v. Trump, No. 17-cv-00255 (D. D.C.), in
support of a challenge to the first Executive Order. The attached declarations
describe the circumstances of individuals who remain affected by the revised
Executive Order.

11

See, e.g., Ex. 3, Decl. of Shiva Hissong.

12

See, e.g., Ex. 1, Decl. of Omid Moghimi, ¶ 19.

13

The limited waiver provision in Section 3(c) of the Executive Order does not
mitigate the harms suffered by those affected by the Order, who can have no
reasonable expectation that they will be permitted to enter the United States under a
discretionary exception that individual immigration officials may or may not
authorize “on a case-by-case basis.” Exec. Order No. 13,209, 82 Fed. Reg. 13,209
(Mar. 9, 2017), available at https://www.whitehouse.gov/the-pressoffice/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-unitedstates.

13

Moreover, immigrants and visitors from the targeted countries contribute to
State and national life in numerous ways that will be stymied by the Executive
Order. For instance, State and private colleges and universities recruit students,
permanent faculty, and visiting faculty from the targeted countries. See, e.g., Katyal
Decl. Ex. D-1 (Supp. Decl. of Risa E. Dickson, University of Hawaii System) ¶¶ 68. The Executive Order will prevent visa applicants from the banned countries from
studying or teaching at U.S. universities, irrevocably damaging their personal and
professional lives and harming our educational institutions, not only in Hawaii, but
throughout the country.14 By way of further example, recent research by economists
affiliated with Harvard and MIT shows that, across the United States, “14 million
doctors’ appointments are provided each year by physicians” from the six affected
countries.15 Preventing doctors from these countries from coming to the United
States, and making it harder for those already here to stay, such as by preventing
their family members from visiting or joining them here, will adversely impact

14

For example, according to the Department of State, thousands of Iranian students
study in the United States each year. Study in the U.S.A., U.S. VIRTUAL EMBASSY
IRAN, https://ir.usembassy.gov/education-culture/study-usa/.
15

THE IMMIGRANT DOCTORS PROJECT, https://www.immigrantdoctors.org (analyzing
statistics from Doximity, an online networking site for doctors that assembled this
data from a variety of sources, including the American Board of Medical Specialties,
specialty societies, state licensing boards, and collaborating hospitals and medical
schools).

14

medical institutions and curtail the medical care available to the citizens of this State
and others.
Singling out and banning nationals from the six predominantly Muslim
targeted countries, as the Executive Order does, causes further harm by stigmatizing
not only immigrants and refugees, but also Muslim citizens of the United States. The
repeated calls by the President and his advisors for a “total and complete shutdown of
Muslims entering the United States”16 and for the implementation of a “Muslim
ban”17 are the raison d’etre of this Executive Order. That the Government has
dressed the revised Executive Order in new clothing after its first effort was enjoined
by the Ninth Circuit does not diminish the significance of the President’s prior
statements or their relevance to this Court’s inquiry as to whether the Order passes
legal muster. As revealed by a senior policy advisor to the President, the revised
Executive Order still has “the same basic policy outcome for the country.”18 Such
declarations, and the Executive Order itself, have made immigrants and Muslim
16

Press Release, Donald J. Trump for President, Inc., Donald J. Trump Statement on
Preventing Muslim Immigration (Dec. 7, 2015), available at
https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.
17

Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a
commission to do it ‘legally,’ WASH. POST, Jan. 29, 2017.
18

Miller: New order will be responsive to the judicial ruling; Rep. Ron DeSantis:
Congress has gotten off to a slow start (Fox News television broadcast Feb. 21,
2017), transcript available at http://www.foxnews.com/transcript/2017/02/21/millernew-order-will-be-responsive-to-judicial-ruling-rep-ron-desantis/.

15

citizens justifiably fearful. Against the backdrop of the recent rise in hate crimes
against Muslims in the United States,19 the Executive Order amplifies the sense of
persecution that citizens and immigrants of Muslim faith suffer.
Further, the Executive Order’s suspension of the U.S. Refugee Admissions
Program will have catastrophic consequences for innumerable individuals and
families fleeing war, violence, and political or religious persecution. In the words of
the United Nations High Commissioner for Refugees, the Executive Order will
“compound the anguish” for people “who remain in urgent need of life-saving
assistance and protection.”20 The suspension of the refugee program is also
antithetical to the interests of States and organizations committed to resettling and
assisting refugees, including one of the amici here, HIAS. The U.S. Government
has tasked States and non-profit organizations with primary responsibility for

19

See, e.g., Matt Zapotosky, Hate crimes against Muslims hit highest mark since
2001, WASH. POST, Nov. 14, 2016.
20

Press Release, UNHCR, UNHCR underscores humanitarian imperative for
refugees as new U.S. rules announced (Mar. 6, 2017), http://www.unhcr.org/enus/news/press/2017/3/58bdd37e4/unhcr-underscores-humanitarian-imperativerefugees-new-rules-announced.html. The refugee ban may also have ripple effects on
the treatment of refugees globally. See, e.g., Trump’s refugee clampdown stops
Iranian path through Austria, FOX NEWS WORLD, Jan. 27, 2017,
http://www.foxnews.com/world/2017/01/27/trump-refugee-clampdown-stopsiranian-path-through-austria.html.

16

administering the U.S. Refugee Resettlement Program.21 Aiding refugees is central
to the culture, values, and mandates of these States and organizations, but the
Executive Order will prevent them from fulfilling their missions to welcome
refugees and serve refugee communities throughout the United States.
The Government will likely assert, as it has before, that the Executive Order
addresses an urgent national security risk that represents a countervailing harm
weighing against any injunction.22 Yet, in enjoining enforcement of the first
Executive Order, the Ninth Circuit found that “[t]he Government . . . pointed to no
evidence that any alien from any of the countries named in the Order has perpetrated
a terrorist attack in the United States.” Washington, 847 F.3d at 1168. And in the
month since, Defendants have assembled little evidence that the Executive Order
would promote national security. Indeed, the Executive Order points to only a single
instance in which a national of one of the six targeted countries was convicted of a
terrorism-related crime: the conviction of a Somali native who had been brought to

21

U.S. ADMIN. FOR CHILDREN & FAMILIES, ANNUAL REPORT TO CONGRESS: OFFICE
OF REFUGEE RESETTLEMENT FISCAL YEAR 2015 at 6, available at
https://www.acf.hhs.gov/sites/default/files/orr/arc_15_final_508.pdf.

22

See, e.g., Emergency Mot. Under Cir. Rule 27-3 for Admin. Stay & Mot. for Stay
Pending Appeal at 20-21, Washington v. Trump, 847 F.3d 1151 (9th Cir. Feb. 4,
2017) (No. 17-35105), ECF No. 14.

17

the United States years before as a child refugee.23 But the U.S. Attorney who
prosecuted this individual said that “[h]is radicalization had precisely nothing to do
with his refugee status,” as “[h]e was radicalized long after he became a United
States citizen”; in fact, “[t]he assistance of the refugee community was crucial to
th[e] investigation.”24 That one incident is a facially insufficient basis on which to
brand more than one hundred and eighty million citizens of the six targeted countries
as terrorist threats and ban them from traveling to the United States.25
CONCLUSION
For the foregoing reasons, as well as those set forth in the Memorandum in
Support of Plaintiffs’ Motion for Temporary Restraining Order, amici respectfully

23

Exec. Order No. 13,209, 82 Fed. Reg. 13,209 (Mar. 9, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protectingnation-foreign-terrorist-entry-united-states.
24

Colin Miner, Trump Travel Ban Won’t Keep Us Safe, Says US Attorney Who
Prosecuted Would-Be Bomber, PATCH, Mar. 7, 2017,
http://patch.com/oregon/portland/trump-travel-ban-wont-keep-us-safe-says-usattorney-who-prosecuted-would-be-bomber.
25

The Government’s assertions that the Executive Order is motivated by urgent
national security interests, and the President’s claim that “many very bad and
dangerous people” will “pour[] in” if there is any delay in implementation of a travel
ban, are also belied by the weeks of delay in finalizing the new Executive Order,
including a five-day delay immediately prior to the Order’s signing based on what
was reported to be the President’s desire to enjoy favorable reviews of his February
28 speech to Congress. See Donald J. Trump (@realDonaldTrump), TWITTER (Feb.
4, 2017, 1:44 P.M.), https://goo.gl/kPP3Om; Laura Jarrett et al., Trump delays new
travel ban after well-reviewed speech, CNN, Mar. 1, 2017,
http://www.cnn.com/2017/02/28/politics/trump-travel-ban-visa-holders/.

18

support Plaintiffs’ request that the Court grant a temporary restraining order
enjoining implementation of the Executive Order on a nationwide basis.
Dated:

Honolulu, Hawai‘i,
March 10, 2017
Respectfully submitted,
By: /s/ Lisa Woods Munger
Lisa Woods Munger (HI Bar No.
003858-0)
GOODSILL ANDERSON QUINN &
STIFEL LLP
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Alan C. Turner*
SIMPSON THACHER & BARTLETT
LLP
425 Lexington Avenue
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Harrison J. (Buzz) Frahn IV*
SIMPSON THACHER & BARTLETT
LLP
2475 Hanover Street
Palo Alto, California 94304
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
*Pro hac vice application pending

19

Attorneys for Amici Curiae Human
Rights First, KIND (Kids in Need of
Defense), Tahirih Justice Center, and
HIAS

20

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,

CV. NO. 1:17-cv-00050 DKW-KJM
DECLARATION OF LISA WOODS
MUNGER; EXHIBITS 1 - 3

vs.
DONALD J. TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.
DECLARATION OF LISA WOODS MUNGER
I, LISA WOODS MUNGER, declare as follows:
1.

I am an attorney with the law firm of Goodsill Anderson Quinn

& Stifel LLP, duly licensed to practice law in the State of Hawai‘i and in the
United States District Court for the District of Hawai‘i, representing Amici Curiae
HUMAN RIGHTS FIRST, KIND (Kids in Need of Defense), TAHIRIH JUSTICE
CENTER, and HIAS (“Amici”) in State of Hawaii and Ismail Elshikh v. Donald J.
Trump, in his official capacity as President of the United States, et al., Civil No.

17-cv-00050 DKW-KJM. I make this declaration based upon information gained
in that capacity and am competent to testify as to the matters herein.
2.

All of the facts stated herein are true and correct and within my

personal knowledge, except for matters stated to be true on information and belief,
and as to those matters, I believe them to be true. If called and sworn I could and
would testify to the truth thereof.
3.

Attached hereto as Exhibit 1 is a true and correct copy of the

Declaration of Omid Moghimi in Support of Plaintiffs’ Motion for Preliminary
Injunction filed on February 8, 2017, in the United States District Court for the
District of Columbia in Civil No. 1:17-cv-00255 and styled as Pars Equality
Center, et al. v. Donald J. Trump, President of the United States, et al.
4.

Attached hereto as Exhibit 2 is a true and correct copy of the

Declaration of Jane Doe #1 in Support of Plaintiffs’ Motion for Preliminary
Injunction filed on February 8, 2017, in the United States District Court for the
District of Columbia in Civil No. 1:17-cv-00255 and styled as Pars Equality
Center, et al. v. Donald J. Trump, President of the United States, et al.
5.

Attached hereto as Exhibit 3 is a true and correct copy of the

Declaration of Shiva Hissong in Support of Plaintiffs’ Motion for Preliminary
Injunction filed on February 8, 2017, in the United States District Court for the

2

District of Columbia in Civil No. 1:17-cv-00255 and styled as Pars Equality
Center, et al. v. Donald J. Trump, President of the United States, et al.
I declare under penalty of law that the foregoing is true and correct.
DATED: Honolulu, Hawai‘i, March 10, 2017.

/s/ Lisa Woods Munger
LISA WOODS MUNGER

3

Exhibit 1

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 122 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 123 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 124 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 125 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 126 of 227

Exhibit 2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 129 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 130 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 131 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 132 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 133 of 227

Exhibit 3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 115 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 116 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 117 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 118 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 119 of 227

CERTIFICATE OF WORD COUNT
Pursuant to Local Rule 7.5(e), I hereby certify that the foregoing Brief of
Amici Curiae Human Rights First, KIND (Kids in Need of Defense), Tahirih
Justice Center, and HIAS, in Support of Plaintiffs’ Motion for Temporary
Restraining Order, is in Times New Roman, 14-point font and contains 4,333
words, exclusive of case caption, table of contents, table of authorities, and
identifications of counsel, as reported by the word processing system used to
produce the document. This word count is in compliance with the limitation set
forth in Local Rule 7.5(b).
Dated:

Honolulu, Hawai‘i,
March 10, 2017
/s/ Lisa Woods Munger
Lisa Woods Munger
(HI Bar No. 003858-0)
Attorney for Amici Curiae

21