State of Hawaii v. Trump

Filing 293

Emergency MOTION to Clarify Scope of Preliminary Injunction re #291 Preliminary Injunction, Neal Katyal appearing for Plaintiff State of Hawaii (Attachments: #1 Memorandum Memorandum of Law in Support of Emergency Motion to Clarify, #2 Exhibit Proposed Order, #3 Certificate of Service)(Katyal, Neal)

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawai‘i

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL ELSHIKH,
Plaintiffs,

v.

Civil Action No. 1:17-cv-00050DKW-KSC

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.

1

EMERGENCY MOTION TO
CLARIFY SCOPE OF
PRELIMINARY
INJUNCTION

ADDITIONAL COUNSEL
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawai‘i

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

2

EMERGENCY MOTION TO CLARIFY SCOPE OF PRELIMINARY
INJUNCTION
Pursuant to Local Rules 6.2 and 7.6 for the United States District Court for
the District of Hawaii and Rule 7 of the Federal Rules of Civil Procedure, Plaintiffs
State of Hawaii (the “State”) and Dr. Ismail Elshikh, by and through their counsel,
respectfully request that the Court immediately partially lift the April 3, 2017
Order staying these proceedings (Dkt. No. 279) for the limited purpose of issuing
an Order clarifying the scope of the Court’s June 19, 2017 amended preliminary
injunction (Dkt. No. 291).
The Government has indicated publicly that it will begin enforcing the nonenjoined portions of Executive Order 13780 in a manner that conflicts with this
Court’s preliminary injunction, as well as the Supreme Court’s June 26, 2017
ruling that the Executive Order (specifically, Sections 2(c), 6(a), and 6(b)) may not
be enforced against foreign nationals and refugees “who have a credible claim of a
bona fide relationship with a person or entity in the United States.” Trump v. Int’l
Refugee Assistance Project, Nos. 16-1436 and 16-1540, slip. op. at 11, 13 (June
26, 2017) (per curiam). Plaintiffs request that the Court clarify: (1) that the
injunction bars the Government from enforcing the Executive Order against
fiancés, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles,
nieces, nephews, and cousins of persons in the United States; (2) that refugees with
a bona fide relationship with a person or entity in the United States are covered by
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the injunction; and (3) that the Government may not apply a presumption that
aliens lack a “bona fide relationship with a person or entity in the United States.”
Id. at 12.
The Government has indicated that it will begin enforcing the non-enjoined
portions of the Executive Order starting today, June 29, 2017, at 8:00 p.m. EDT
(2:00 p.m. HST). Counsel for Plaintiffs repeatedly attempted to confer with
counsel for Defendants between June 27, 2017 and June 29, 2017 and received no
response until 4:43 p.m. EDT (10:43 a.m. HST), at which time counsel for
Defendants conveyed by email the Government’s position that it is “in full
compliance with the preliminary injunction, as amended by the Supreme Court.”
In light of the exigent circumstances, Plaintiffs request that the Court consider their
motion on an emergency basis and shorten the time for consideration and any
responsive briefing pursuant to Local Rule 6.2. A supporting memorandum of law
is attached hereto.

DATED: Washington, D.C., June 29, 2017.

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Respectfully submitted,
/s/ Neal K. Katyal
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i

5

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh