State of Hawaii v. Trump

Filing 267

MEMORANDUM re 238 MOTION to Convert Temporary Restraining Order to Preliminary Injunction [Brief of HIAS Amicus Curiae in Support of 238 filed by HIAS. (Attachments: # 1 Certificate of Service)(Munger, Lisa)

GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP

LISA WOODS MUNGER
3858-0
[e-mail]
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]
DECHERT LLP
G. ERIC BRUNSTAD, JR. (Pro Hac Vice Pending)
[e-mail]
90 State House Square
Hartford, Connecticut 06103
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Curiae
HIAS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,
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
6308255.1

CV. NO. 1:17-cv-00050 DKW-KJM
BRIEF OF HIAS AS AMICUS
CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION TO
CONVERT TEMPORARY
RESTRAINING ORDER TO A
PRELIMINARY INJUNCTION;
CERTIFICATE OF SERVICE
Related Dkt. No. 238
HEARING
Date:
March 29, 2017
Time:
9:30 a.m.
Judge:
Hon. Derrick Watson

STATES OF AMERICA,
Defendants.

2

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... ii 
STATEMENT OF INTEREST .................................................................................1 
ARGUMENT ............................................................................................................3 
I. 

Refugees in America and the Executive Order ....................................3 

II. 

Real-Life Stories of Those Affected by the Executive Order. ........... 12 

CONCLUSION .......................................................................................................21 

i

TABLE OF AUTHORITIES
Page(s)
Statutes
8 U.S.C. § 1101(a)(42) ............................................................................................... 7
8 U.S.C. § 1158(b)(2)(A)(i)-(vi) ................................................................................ 9
8 U.S.C. § 1522 .......................................................................................................... 6
Other Authorities
Crisis Looms at Kakuma Camp as South Sudanese Refugees Flee
Conflict, DAILY NATION (Jan. 11, 2014),
http://www.nation.co.ke/news/africa/Kakuma-South-SudanConflict-Refugee-Camp/1066-2142410-np3d4c/index.html.............................. 16
Elsa Buchanan, String of Rapes in Kenya’s Kakuma Refugee Camp
Force Communities to Set Up Vigilante Groups, International
Business Times (June 28, 2016), available at
http://www.ibtimes.co.uk/string-rapes-kenyas-kakuma-refugeecamp-forces-communities-set-vigilante-groups-1567694 .................................. 15
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017)................................. 3, 4
Exec. Order No. 13,780, 82 Fed. Reg. 13209 (March 6, 2017) ............................ 4, 5
Introductory Note by the Office of the UNHCR, available at
www.unhcr.org/en-us/protection/basic/3b66c2aa10/conventionprotocol-relating-status-refugees/html ................................................................ 11
Jeff Crisp, A State of Insecurity: The Political Economy of Violence in
Refugee-Populated Areas of Kenya 2 (Evaluation and Policy
Analysis Unit, UNHCR, Working Paper No. 16, 1999), available
at http://www.unhcr.org/en-us/research/working/3ae6a0c44/stateinsecurity-political-economy-violence-refugee-populated-areaskenya.html ........................................................................................................... 15

ii

Nicholas Seeley, The Last Refugee Camp: Could the World’s Go-To
Strategy of Warehousing the Displaced Finally Be Changing?,
Foreign Policy (Oct. 30, 2013), available at
http://foreignpolicy.com/2013/10/30/the-last-refugee-camp/ ............................ 15
Reports Thousands of Refugees Fled Kenya’s Kakuma Camp After
Violence, SBS (Nov. 7, 2014),
http://www.sbs.com.au/news/article/2014/11/07/reports-thousandsrefugees-fled-kenyas-kakuma-camp-after-violence; .......................................... 16
Susannah Cunningham, Inside the Brutal, Thorough Process of
Vetting Refugees (Feb. 2, 2017), www.vox.com/firstperson/2017/2/2/14459006/trump-executive-order-refugees-vetting................. 11
United Nations Convention of the Status of Refugees, July 28, 1951,
19 U.S.T. 6259, 189 U.N.T.S. 137, available at
http://www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relatingstatus-refugees.html .......................................................................................... 6, 7
United Nations Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, available at
http://www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relatingstatus-refugees.html .......................................................................................... 6, 7
UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and 1967 Protocol
Relating to the Status of Refugees, HCR/IP/Eng/Rev. 1, UNHCR
1979, reedited January 1992 ................................................................................. 6
U.S. Citizen and Immigration Services, Refugee Processing and
Security Screening, http://www.uscis.gov/refugeescreening .....................7, 9, 10
U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs (Jan. 20,
2017),
https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm ................. 6, 8
U.S. Dep’t of State State, U.S. Refugee Admissions Program,
http://www.state.gov/j/prm/ra/admissions/index.htm.................................8, 9, 10

iii

STATEMENT OF INTEREST
This case tests the propriety of President Donald Trump’s Executive Order
No. 13,780 (“Executive Order” or “Order”), which, among other things,
temporarily suspends the entire U.S. Refugee Admission Program (“USRAP”). As
the world’s oldest refugee protection and resettlement agency, HIAS has a
considerable interest in USRAP, as well as unique insight into the practical
consequences of the suspension of the program.1
HIAS was founded in the 1880s to help resettle Jews fleeing persecution in
tsarist Russia. Over time, it has expanded its mission, and today HIAS provides
services to any refugees in need of assistance, regardless of their national, ethnic,
or religious background. Since its founding, HIAS has helped more than 4.5
million refugees start new lives.
HIAS assists refugees through a multi-pronged approach. It resettles and
integrates refugees in the United States, offers legal assistance, facilitates
psychosocial care, and provides resources for refugees to acquire economic
stability.

Additionally, HIAS advocates domestically and internationally for

policies that properly account for the plight of refugees.
1

Plaintiffs have consented to the filing of this brief and Defendants have
taken no position. No counsel for any party authored this brief in whole or in part
and no entity or person, aside from amicus curiae, its members, and counsel, made
any monetary contribution intended to fund the preparation or submission of this
brief.

6308255.1

Refugee resettlement in the United States lies at the heart of HIAS’s work.
HIAS is one of only nine national agencies designated by the federal government
to resettle refugees in the United States. Six of those agencies, including HIAS,
are faith-based organizations. Each refugee who enters the United States must be
sponsored by one of the nine agencies. As the oldest resettlement agency in the
United States, HIAS uses its extensive expertise to resettle refugees from war-torn
countries, helping them to integrate into their new homes and settings. Through
local affiliates, HIAS helps refugees navigate their new life and become selfsufficient through employment.
The Executive Order has directly impacted HIAS’s mission to help refugees
by suspending USRAP. The opaque implementation of the Order has caused
confusion and extreme, dire consequences for HIAS’s refugee clients. Because
HIAS has spent more than a century developing its expertise with refugees and
refugee issues, HIAS is in a position to offer insight into the refugee application
and vetting process as well as the real-world consequences of the Executive Order.
To that end, HIAS submits this brief with two essential purposes in mind: (1) to
help explain the refugee program, and (2) to provide real-life narratives of the
effects of the Order on the lives of refugees.

2

ARGUMENT
I.

Refugees in America and the Executive Order
On January 27, 2017, President Trump signed the first of two Executive

Orders relating to USRAP, entitled “Protecting the Nation from Foreign Terrorist
Entry into the United States.” Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan 27,
2017) (“First Executive Order” or “First Order”).

The First Executive Order

temporarily prohibited entry of all nationals from seven majority-Muslim
countries, and directed the Secretary of State to “suspend the U.S. Refugee
Admissions Program [USRAP] for 120 days.” Id. § 5. With respect to Syrian
nationals—approximately 4.8 million of whom are presently refugees—section
5(c) “proclaim[ed] that” their entry “as refugees is detrimental to the interests of
the United States and thus suspend[ed] any such entry indefinitely.” Id. § 5(c).
During the temporary suspension of USRAP, the order provided that “the
Secretaries of State and Homeland Security may jointly determine to admit
individuals to the United States as refugees on a case-by-case basis . . . only so
long as they determine that the admission of such individuals as refugees is in the
national interest—including when the person is a religious minority in his country
of nationality facing religious persecution.” Id. § 5(e). Once USRAP is resumed,
the First Executive Order directed similar religious minority prioritization and
instructed the Secretary of State, in consultation with the Secretary of Homeland
Security, to “prioritize refugee claims made by individuals on the basis of
3

religious-based persecution, provided that the religion of the individual is a
minority religion in the individual’s country of nationality.” Id. § 5(b).2
The First Executive Order sparked lawsuits across the country, including this
one. See Order Granting Motion to Temporary Restraining Order at 3, Doc. No.
219. This Court never ruled on the Plaintiffs’ motion to enjoin the enforcement of
the First Order because the District Court for the Western District of Washington
entered a nationwide preliminary injunction enjoining enforcement of that order.
Id. The Ninth Circuit denied the Government’s request for an emergency stay of
the injunction and ultimately granted the Government’s unopposed motion to
dismiss its appeal. Id. at 4.
The Executive Order now at issue in this case was executed on March 6,
2017 and bears the same title as the First Order. Exec. Order 13,780, 82 Fed. Reg.
13209 (March 6, 2017). The Executive Order temporarily prohibits for 90 days
entry of all nationals from six of the seven majority-Muslim countries named in the
First Order, excepting only nationals from Iraq. Id. § 2(c). Like the First Order,
the Executive Order “suspend[s] travel of refugees into the United States under the
USRAP” and suspends decisions on applications for refugee status for 120 days.
Id. § 6. In spite of the suspension of USRAP, “the Secretary of State and Secretary
of Homeland Security may jointly determine to admit . . . refugees on a case-by2

President Trump indicated that the prioritization of religious minorities was
intended to favor Christian Refugees. Second Am. Complaint ¶ 58, Doc. No. 64.
4

case basis, in their discretion, but only so long as they determine that the entry of
such individuals as refugees is in the national interest and does not pose a threat to
the security or welfare of the United States.” Id. § 6(c). The Executive Order
gives as an example of a circumstance where entry would be allowed a situation
where “the individual’s entry would enable the United States to conform its
conduct to a preexisting international agreement or arrangement, or the denial of
entry would cause undue hardship.” Id. Unlike the First Order, the Executive
Order does not expressly allow a preference for religious minorities.
Invoking national security interests, the administration has proffered that the
prohibition on Muslim refugees and suspension of USRAP is a necessary means to
protect against terrorist entry and activities. This justification is divorced from
logic and reality. Refugees, particularly Syrian refugees, are the most intensely
vetted entrants to the United States. An applicant who has obtained refugee status
will have undergone years of intensive interviews, biometric checks, and
screenings, with vetting from multiple international and national security
organizations. Moreover, the invocation of national security interests and the
intimation that Muslims are terrorists is a transparent attempt to further the same
discriminatory, vitriolic anti-Muslim rhetoric that defined President Trump’s
presidential campaign.

5

Unless stayed, the Executive Order’s present and future effect on Muslim
refugees from majority-Muslim countries will be devastating, and its terms
profoundly offend this country’s fundamental commitments under national and
international law. Refugees are recognized by national and international principles
as among the “world’s most vulnerable people.”

U.S. Dep’t of State,

U.S.

(Jan.

Refugee

Admissions

Program

FAQs

20,

2017),

https://www.state.gov/j/prm/releases/factsheets/ 2017/266447.htm. Their status as
a class requiring heightened protections and international cooperation is enshrined
in the United Nations Convention on the Status of Refugees (the “Convention”)
and the 1967 Protocol to the Convention (the “Protocol”).

United Nations

Convention on the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189
U.N.T.S. 137 and United Nations Protocol Relating to the Status of Refugees,
Jan. 31,

1967,

19

U.S.T.

6223,

606

U.N.T.S.

267,

available

at

http://www.unhcr.org/en-us/protection/basic/3b66c2aa10/convention-protocolrelating-status-refugees.html.3 According to the Convention and Protocol, the term
refugee “shall apply,” inter alia, to any person who:

3

The United States is party to the Protocol and has “undertake[n] to apply
articles 2 to 34 inclusive of the Convention” to refugees by virtue of its accession.
Protocol, art. 1(1); see also UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, HCR/IP/4/Eng/Rev. 1, UNHCR 1979, reedited
January 1992, at ¶ 9, available at http://www.unhcr.org/4d93528a9.pdf (“By
accession to the 1967 Protocol, States undertake to apply the substantive
6

owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country.
Convention, art. 1(A)(2); Protocol, art. 1 (extending the Convention definition of
refugee to encompass those who became refugees due to events that proceeded
January 1951).4
To qualify as a refugee and resettle in the United States, a refugee must
navigate a labyrinth of processes and investigations designed precisely to protect
national security interests while assessing the refugee’s entitlement to status and
resettlement. According to the U.S. State Department, refugees undergo the “most
intensive security screening of any traveler to the United States.”

5

U.S.

provisions of the 1951 Convention to refugees as defined in the Convention, but
without the 1951 deadline.”). The United States has codified certain principles of
these conventions as part of national law. See 8 U.S.C. § 1522.
4

Under U.S. law, a refugee is similarly defined as “any person who is outside
any country of such person’s nationality, or in the case of a person having no
nationality, is outside any country in which such person last habitually resided, and
who is unable or unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion[.]” 8 U.S.C.A. § 1101(a)(42).
5

Syrian refugees are subject to heightened security screening. See U.S.
Citizen and Immigration Services, Refugee Processing and Security Screening,
http://www.uscis.gov/refugeescreening.
7

Department of State, U.S. Refugee Admissions Program FAQs (Jan. 20, 2017),
https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm.
In light of the administration’s assertion that the vetting process needs to be
even more extreme than it currently is, the details of the current process bear
explication. The process typically begins with the office of the United Nations
High Commissioner for Refugees (“UNHCR”), which interviews and screens the
applicant and determines whether the applicant may qualify as a refugee, and
where the applicant may resettle.6

See U.S. Dep’t of State, U.S. Refugee

Admissions Program, https://www.state.gov/j/prm/ra/admissions/index.htm. Next,
the Resettlement Support Center (“RSC”)7 will interview the applicant and enter
the relevant application document into the Department of State’s Worldwide
Refugee Admission Processing System (“WRAPS”), cross reference and verify the
data, and send information required for a background check to other U.S. agencies.
Id. Multiple national security agencies, including the National Counterterrorism
6

In certain circumstances, specially trained non-governmental organizations
will identify the refugee and begin this process. See U.S. Dep’t of State, U.S.
Refugee Admissions Program, https://www.state.gov/j/prm/ra/admissions/index.
htm. Certain refugees may start the application process without a referral from the
UNHCR or entity. Id. These refugees are often close relatives of asylees and
refugees already in the U.S., or belong to specific groups identified in by statute or
the U.S. Department of State as eligible for direct access to the refugee and
resettlement program. Id.
7

The RSC is funded by the U.S. Department of State’s Bureau of Population,
Refugees and Migration (“PRM”). Id.
8

Center, Department of Homeland Security (“DHS”),8 Federal Bureau of
Investigation (“FBI”),9 Department of State, and intelligence agencies will screen
the applicant and assess any security threats, including any connections to known
bad actors, and past immigration and criminal violations.10 Id.
Once results are screened, the United States Citizenship and Immigration
Services (“USCIS”), a component of DHS, will interview the applicant in a host
nation or, in exceptional circumstances, in the applicant’s country of origin.
During this interview, a USCIS officer collects additional biometric data.11 Id.
This biometric data is used to conduct an additional series of checks. Additionally,

8

DHS will conduct an advanced screening of Syrian refugees. Id.

9

The FBI and intelligence community partners will conduct and prepare a
Security Advisory Opinion (“SAO”), which is a biographic check “for an applicant
who is a member of a group or nationality that the United States government has
designated as requiring this higher level check.” See U.S. Citizen and Immigration
Services, Refugee Processing and Security Screening, available at
https://www.uscis.gov/refugeescreening.

10

United States refugee law includes several exclusions from refugee status
rendering certain categories of individuals ineligible for asylum protections. The
exclusions include, for example, a person who participated in persecution or who
has been convicted by a final judgment of a “particularly serious crime” and
therefore “constitutes a danger to the community of the United States.” See 8
U.S.C.A. § 1158(b)(2)(A)(i)-(vi).
11

Fingerprints are stored in a DHS database and screened against: the FBI
biometric database, the DHS biometric database, and the U.S. Department of
Defense database. U.S. Dep’t of State, U.S. Refugee Admissions Program,
http://www.state.gov/j/ prm/ra/admissions/index.htm.
9

anytime the applicant’s information changes at any point in the process, the
information is entered into WRAPS and new security checks are initiated. Id.
Inconsistencies will place the case on hold until resolved.

Id.12

Should the

application proceed, applicants must complete a cultural orientation course and a
medical screening, the results of which are also entered into WRAPS. Id. If the
case is cleared, resettlement agency representatives, who meet weekly to review
WRAPS information, will determine where to resettle the refugee. Id. Should the
applicant be assigned to the United States, the applicant will be subject to further
screening from United States Customs and Border Protection, and the
Transportation Administration’s Secure Flight Program. Id.
This overview of the vetting process, which captures its stringency, does not
convey a fraction of the uncertainty and fear refugees endure during the months
and years that the process typically takes. Individuals fleeing life-threatening
12

The Department of State, through the Consular Lookout and Support System
(“CLASS”), will also initiate name checks on the applicant’s primary names and
any variations used by the applicant. Responses are received before the USCIS
conducts its interview, and possible matches are reviewed and adjudicated by
USCIS headquarters. If another name or variation is identified during the USCIS
interview, another name will be screened through CLASS. See U.S. Citizen and
Immigration Services, Refugee Processing and Security Screening,
https://www.uscis.gov/refugeescreening. CLASS also includes information from:
National Counterterrorism Center/Terrorist Screening Center; Treasury
Enforcement
Communications
System,
Interpol.
Drug
Enforcement
Administration, Health and Human Services, and FBI. Id. Additionally, if, during
the process, any national security concerns are raised, USCIS conducts an
additional review through the Controlled Application Review and Resolution
Process.
10

circumstances are required to recount, in detail and repeatedly, every hardship to
the agencies and departments that will determine their fate. They must do so in a
system wherein they shoulder the burden of proving their own vulnerability. See,
e.g., Susannah Cunningham, Inside the Brutal, Thorough Process of Vetting
Refugees (Feb. 2, 2017), www.vox.com/first-person/2017/2/2/14459006/trumpexecutive-order-refugees-vetting. Individuals who have obtained refugee status
may languish for years in refugee camps or temporary havens before being
permitted to formally resettle in the United States. See infra Section II.
Moreover, the administration’s anti-Muslim stance on refugee resettlement,
reflected most glaringly by its determination to grant priority processing to
religious minorities in majority Muslim countries, runs deeply afoul of principles
fundamental to the Convention, “most notably, non-discrimination.” Introductory
Note by the Office of the UNHCR, available at www.unhcr.org/enus/protection/basic/3b66c2 aa10/convention-protocol-relating-status-refugees/html.
Convention principles “are to be applied without discrimination as to race,
religion, or country of origin.” Id. The administration’s purpose of preventing
Muslims from nearing national ports of entry is well-documented, and disturbingly
unambiguous. The purported priority to be granted to religious minorities deepens
a discriminatory policy against Muslims. Among other things, this reflects a gross
misunderstanding of the enormous range of refugee experiences, see infra Section
11

II, and of the nation’s international commitments to ease the plight of refugees
regardless of their religious views and national origins.
II.

Real-Life Stories of Those Affected by the Executive Order.
Unless stayed, the Executive Order will cause needless and unjustifiable

irreparable harm to vulnerable refugees and their families. What is more, the
Order is set to be applied in ways that are contrary to the core of the American
ethos. Our country prides itself as a beacon of hope for people suffering under
totalitarian regimes. Further, many of the people the Order would bar are in fact
among the most in need of our hospitality, people we should be encouraging to
seek our help. This section offers a representative sampling of their circumstances.
Ten-year-old Julie and twelve-year-old Aicha,13 two girls from the
Democratic Republic of Congo, are prime examples of the crucial need for
USRAP. Until recently, these girls were living in a refugee camp in Uganda.
They have suffered the loss of their birth family and experienced first-hand the
challenges of subsistence survival in a war-torn and unstable country. The refugee
camp where they lived is no place for children, especially those without family
members to look after them. The educational services are inadequate, and they
were not receiving enough nutrition—the girls weigh only 49 and 58 pounds.

13

The names of the individuals whose stories are discussed in this brief have
been altered.
12

After staying unaccompanied in their refugee camp for an extended period, they
were finally approved to come to the U.S. as refugees and a foster family was lined
up for them. Yet, when the First Executive Order was issued, their travel to the
United States was delayed and, for a time, uncertain. It is only because of the
District of Washington’s order staying the First Order that these children were able
to leave the refugee camp and join their foster family. But other children like Julie
and Aicha remain in refugee camps, living in dangerous and unsafe conditions and
denied the opportunity for the kind of life all children deserve. Unless stayed, the
Executive Order would stand between these children and a stable home, with
caring adult supervision and educational opportunities.
Another family needlessly separated by the First Executive Order, and who
would continue to be separated by the Executive Order unless it is stayed, are a
husband and wife from Somalia. The wife, Fawzia, is a Somali refugee who
resettled in the United States in 2016. She originally fled Somalia in 2011 to
escape ongoing persecution during the civil war. She and her family went to India,
where she met and later married her husband, who was also a refugee from
Somalia. Though Fawzia resettled in the United States last year, her husband
remained behind. Now, with the Order in place, Fawzia’s husband is prevented
from reuniting with his wife, perhaps indefinitely, unless the Order is stayed.

13

Fawzia has endured much to come to this country. She escaped the horrors
of war, overcame the trials of living in a refugee camp, and navigated the
resettlement process to come to the United States. After all of that, she now lives
in a country that would categorically deny her husband the chance to join her
solely because of the place where he was born. Understandably, Fawzia finds life
without her husband to be difficult. Fawzia is one of the many victims the Order
would impact, separated from loved ones not based on her actions, but on
categorical assumptions regarding a whole population.
A similar story is that of another Somali refugee currently living in the
Midwest who is waiting to be reunited with her husband. Since the issuance of the
Executive Order, she has been suffering and was forced to leave school to find fulltime employment to support herself and her husband. She and her husband had
planned to work on a part-time basis in order to attend school. But with the
Executive Order in place, she has been forced to both take care of herself and send
money to her husband who is unable to join her here, and will continue to be
unable to join her unless the Order is stayed. She is not certain she can continue in
this way.
By suspending indefinitely the process of resettling refugees in the United
States, the Order would endanger the lives of many refugees who are forced to
remain in dangerous camps, which pose unique risks. Due to overpopulation and
14

underfunding, many camps are often unable to provide adequate nutrition and
medical services to their residents, and the camps experience high rates of violence
and crime. And while individuals in these camps live with ongoing anxiety for
their safety and stability, the fear of leaving their families in these conditions is
even greater. The First Order and the Executive Order have resulted in mass panic
for those individuals who now find themselves separated from their families left
behind to face the conditions of the camps without them. This is the case for 22year-old Namir who is currently living in the United States separated from his
family.
Namir and his family fled persecution in Sudan, and were relocated to the
Kakuma refugee camp.

Operated by the office of the United Nations High

Commissioner for Refugees, efforts to make the Kakuma camp and surrounding
areas safe have been largely unsuccessful.14

As a result, refugees face rape,

violence, and death on a daily basis.15 In fact, violence and crime have become so

14

Jeff Crisp, A State of Insecurity: The Political Economy of Violence in
Refugee-Populated Areas of Kenya 2, 12-14 (Evaluation and Policy Analysis Unit,
UNHCR, Working Paper No. 16, 1999) at 2, 12-14, available at
http://www.unhcr.org/en-us/research/working/3ae6a0c44/state-insecurity-politicaleconomy-violence-refugee-populated-areas-kenya.html.
15

Id. at 3-12; see also, e.g., Elsa Buchanan, String of Rapes in Kenya’s
Kakuma Refugee Camp Force Communities to Set Up Vigilante Groups,
International
Business
Times
(June
28,
2016),
available
at
http://www.ibtimes.co.uk/string-rapes-kenyas-kakuma-refugee-camp-forcescommunities-set-vigilante-groups-1567694; Nicholas Seeley, The Last Refugee
15

prominent in Kakuma that refugees have ironically begun fleeing the camp in
search of a safer location.16 Yet Namir and his family lived under these conditions
for ten years, with the hope that their struggles would allow them to begin new
lives in the United States.
Finally, after a decade in Kakuma, Namir and his family were granted
refugee status in the U.S. However, due to the vagaries of the vetting process,
Namir was cleared to come to the United States first. Namir arrived alone in the
southwest in December 2016. With ambitions of becoming a doctor, lawyer, or
businessman, Namir immediately began working with a local resettlement
organization to enroll in community college where he is taking advanced English
classes. With the help of the local organization, Namir is also in the process of
finding a job and inquiring into various vocational training programs.
Namir is still waiting for his family to arrive in the United States. If the
Order is allowed to go into effect, the remainder of his family will be unable to join
Camp: Could the World’s Go-To Strategy of Warehousing the Displaced Finally
Be Changing?, Foreign Policy (Oct. 30, 2013), available at
http://foreignpolicy.com/2013/10/30/the-last-refugee-camp/.
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Reports Thousands of Refugees Fled Kenya’s Kakuma Camp After Violence,
SBS (Nov. 7, 2014), http://www.sbs.com.au/news/article/2014/11/07/reportsthousands-refugees-fled-kenyas-kakuma-camp-after-violence; Crisis Looms at
Kakuma Camp as South Sudanese Refugees Flee Conflict, DAILY NATION
(Jan. 11, 2014), http://www.nation.co.ke/news/africa/Kakuma-South-SudanConflict-Refugee-Camp/1066-2142410-np3d4c/index.html.

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Namir. Indeed, the issuance of the First Order followed by the current Executive
Order swiftly robbed Namir and his family of the joy and relief they had initially
shared when they were given the news that, after ten years of struggling together in
Kakuma, they would be able to start new lives in the United States. For now,
Namir is alone and worries that he will never see his family again, in part because
he is unsure how much longer his family can survive the violence and poverty that
plague Kakuma while they wait to travel to the U.S.
Mustafa is a lawful permanent resident and a refugee originally from Iraq.
His brother Yusuf, Yusuf’s wife, and their four children fled Iraq and have been
living in an apartment in Jordan for the past three years awaiting resettlement in
the U.S. Yusuf and his family had lived previously in a Shia area of Iraq and were
persecuted for being Sunni Muslims. Some Shia individuals told Yusuf and his
family that if they did not leave they would all be killed. The same individuals
were responsible for shooting Yusuf’s nephew. Yusuf has since become very
depressed after learning that he and his family would no longer be resettled in the
U.S. if the Order goes into effect. Mustafa last saw his brother Yusuf in late 2015.
Daniel is a lawful permanent resident and refugee originally from Ethiopia.
His wife and child live currently in Cairo, Egypt, awaiting resettlement in the U.S.
Daniel’s wife is unemployed, and the Egyptian government provides limited
assistance to refugees. Daniel’s wife is Christian and she lives in fear. Daniel last
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saw his wife and child a year ago, and he fears that he will never see them again if
the Order goes into effect.
The Executive Order’s suspension of USRAP similarly threatens to prevent
other families from being reunited with elderly and infirm loved ones, perhaps
permanently.

An Eritrian refugee, Eden, has had substantial success as a

permanent resident in the United States, teaching herself English, attending nursing
school, and recently welcoming her first child. But she fears constantly for her
mother, who Eden has not seen in nearly seven years. Her mother was forced to
flee from Eritrea after being harassed for her religion as a Pentecostal Christian.
Eden’s mother was fully vetted and approved as a refugee prior to the First
Executive Order, but her scheduled flights were cancelled following that order.
Eden’s mother is currently scheduled to travel to the United States imminently, but
she is able to do so only because the Executive Order is currently enjoined. Should
the Order be enforced, others like Eden face the reality that the Order may prevent
them from ever seeing elderly or sick relatives again.
Magan, a Somali refugee, struggles with the same situation only in reverse:
he is an elderly man now living in the United States, and it is his daughter and her
children who remain trapped abroad. Like Eden’s mother, Magan’s daughter and
her family have been vetted and approved as refugees, but their scheduled travel
plans were cancelled following the Order. Since that time, Magan has not been
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able to sleep. He is kept awake by the worry that he will not see his daughter again
before he dies and that she and her children may be forever blocked from safety.
It is also worth illustrating that the Order has had a negative impact not only
on refugees and their families, but also on those in the United States who would
assist them. An example is Clara, a U.S. citizen who came to the United States
twenty-two years ago. Originally from Jordan, she still has family there with
whom she speaks every week. Some of Clara’s family members in Jordan told her
that they have been assisting a Syrian family, a couple and two children who are
preparing to come to the U.S. Clara volunteered to assist the Syrian family, and in
anticipation of their arrival has been collecting and storing donated furniture for
them in her garage. Clara’s relatives provide her with regular updates on the
welfare of the Syrian family. They are Muslim refugees who were forced to flee
Syria.
While in Syria, the family had been abused, lost relatives, and otherwise
experienced the horrors of war. The father, Sami, is unable to work in Jordan and
must rely on friends for support. He is falling behind on his rent and utilities, and
the owner of the home where he and his family are staying has threatened eviction.
Sami suffers from depression because he cannot provide for his family and
children. Sami and his family were ready to come to the U.S., but now they fear
that they will not be able to if the Order goes into effect.
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Unless stayed, the tragic reach of the Executive Order would not be limited
to families in camps in Africa or stranded in dangerous places in the Middle East,
but to refugees worldwide. Monica and Diego are currently living with their
grandmother and mother in El Salvador. They are considering moving to their
aunt’s house in another area because of the gangs. A gang member has been
attempting to force himself on Monica. Diego has already been forced to leave the
area once when gangs tried to recruit him. He eventually went back to live with
the rest of his family, but now the problem has gotten worse. They are not safe
there. Their father, Santos, works as a carpenter, and last saw his children in 1999
when he left for the United States. It is often difficult for Santos to speak with
them. Santos, who is lawfully present in the United States, works with a carpentry
company and this allows him to send money back home to his children, but this
does not ensure their safety. He is waiting for Monica to be resettled to the United
States as a refugee through the Central American Minors program.
These individuals, and thousands more like them, have been, and would
continue to be, needlessly harmed by the Executive Order. Unless stayed, the
Order poses an immediate threat to the lives and well-being of thousands of
refugees.

The Court should consider the plight of these individuals in its

deliberations.

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CONCLUSION
For the foregoing reasons, as well as those set forth in Plaintiffs’
Memorandum of Law in Support of Motion to Convert Temporary Restraining
Order to a Preliminary Injunction, the Amicus respectfully requests that the Court
grant the Motion.
Dated: Honolulu, Hawai‘i, March 28, 2017.

/s/ Lisa Woods Munger
LISA WOODS MUNGER
G. ERIC BRUNSTAD, JR. (Pro Hac Vice Pending)
Attorneys for Amicus Curiae
HIAS

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