State of Hawaii v. Trump
Filing
294
Declaration of Neal K. Katyal in Support of #293 Plaintiff's Emergency MOTION to Clarify Scope of Preliminary Injunction re #291 Preliminary Injunction, . (Attachments: #1 Exhibit Ex. A, #2 Exhibit Ex. B, #3 Exhibit Ex. C, #4 Exhibit Ex. D, #5 Exhibit Ex. E, #6 Certificate of Service)(Katyal, Neal) Modified on 6/30/2017 (emt, ).
6/29/2017
Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States
U.S. Department of State
Diplomacy in Action
Background Briefing on the Implementation of Executive Order
13780 Protecting the Nation From Foreign Terrorist Entry Into the
United States
Special Briefing
Senior Administration Officials
Via Teleconference
Washington, DC
June 29, 2017
MODERATOR: Hi. Good afternoon, everyone, and thanks for joining us for today’s background press conference call on the
implementation of Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States. We’re joined
today by senior administration officials from the White House, Departments of State, Homeland Security, and also from Justice.
From the Department of Justice we have [Senior Administration Official Five]. From DHS we have [Senior Administration Official
Four]. From State we have [Senior Administration Official Two] and [Senior Administration Official Three].
As a reminder, the call will be conducted on background. Attribution should be to senior administration officials. The – what is said
on the call will be embargoed until the conclusion of the call. I’d like to ask the speakers to please identify who they are before they
are speaking, and with that, I’ll turn it over to [Senior Administration Official One] from the White House. [Senior Administration
Official One], hi.
SENIOR ADMINISTRATION OFFICIAL ONE: Thanks, [Moderator]. Thank you all for being on the call. As you know, on
Monday, the United States Supreme Court unanimously ruled that the vast majority of the President’s March 6th Executive Order
Protecting the Nation from Foreign Terrorist Entry into the United States could go into effect. This ruling was a significant win for
our national security, and President Trump was particularly gratified by the unanimity of the decision. As recent events have
shown, we are living in a very dangerous time, and the U.S. Government needs every available tool to prevent terrorists from
entering the country and committing acts of bloodshed and violence. And as the President reiterated following Monday’s ruling, his
number one responsibility as Commander-in-Chief is to keep the American people safe.
Today, the Trump administration will begin taking additional steps to do just that. Pursuant to the President’s June 14th interagency
memorandum and to the extent permitted by the Supreme Court, implementation of Executive Order 13780 will begin today at 8
o’clock p.m. Eastern Standard Time. And to walk you through all the details, as [Moderator] noted, of the implementation that
begins later today, we have representatives from the interagency on the call.
But before I turn it back over, I’d like to commend the entire interagency for their hard work and collaboration since the ruling. This
was an organized and deliberate process, and implementation will be done professionally and expeditiously by all the agencies
involved.
I will now turn the call back over to [Moderator].
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MODERATOR: All right. We’re going to start with our colleagues here at the State Department with [Senior Administration Official
Two] and [Senior Administration Official Three]. [Senior Administration Official Two], if you could go first, please.
SENIOR ADMINISTRATION OFFICIAL TWO: Okay, some top lines. We at State will be implementing the executive order in
compliance with the Supreme Court’s decision and in accordance with the presidential memorandum issued on June 14th, 2017.
We have worked closely with our interagency partners to ensure that this is an orderly rollout. We will, as said before, instruct our
posts to begin implementation at 8 o’clock p.m. Eastern Daylight Time, June 29th.
Our plan is not to cancel previously scheduled visa application appointments, so individuals should continue to come in for their
visa interviews as scheduled. Our consular officers have then been given detailed instructions to make case-by-case
determinations on whether individuals would qualify for visas under the new guidance.
We will first be applying the traditional screening to these individuals. That is, we will be assessing whether they qualify under the
Immigration and Nationality Act, and we will then see, if they do qualify under the INA, whether they qualify under the guidance.
Individuals who are qualified will then be subjected to all vetting as normal. All security and screening vetting will be applied to
anybody who is deemed qualified for a visa.
Thank you.
SENIOR ADMINISTRATION OFFICIAL THREE: Okay. [Senior Administration Official Three] on the refugee side. Let me say
that our objective in implementing the executive order is to ensure the security of the United States, and we’re going to do so in as
orderly a fashion as we possibly can. For the aspects related to refugees of the executive order, Section 6 is important, and it has
two pieces: Section 6(a), which put in place 120-day suspension on the admission of any refugees to the United States, although
that section includes an exception for those refugees who are in transit and booked for travel; and Section 6(b), which set a 50,000
limit on the admission of refugees for Fiscal Year 2017. There is an exemption for those individuals who have bona fide
relationships, and that applies to both pieces – both 6(a) and 6(b).
Let me just say very briefly that those relationships have been described already, and we’re already giving information out to the
field so they can implement it. On the family side, those relationships have been defined to include parents, spouses, children,
adult son or daughters, sons and daughter-in-laws, and siblings.
As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary
course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency
in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a
bona fide relationship under the ruling. We’re going to provide additional information to the field on this.
But I do want to note that based on our discussions with Department of Justice, we have already informed the field and our various
partners that under the in-transit exception, refugees will be permitted to travel if they’ve been booked to travel through July 6th.
And we’re going to be addressing what happens to those who’ve been booked to travel after that time and those who are covered
by the relationships.
Thank you.
MODERATOR: Okay, let’s head over to DHS now. We have [Senior Administration Official Four]. Hi, [Senior Administration
Official Four].
SENIOR ADMINISTRATION OFFICIAL FOUR: Hello, also on the call from DHS is [Senior Administration Official Six] and
[Senior Administration Official Seven]. They will be available later to answer questions on specific portions of their agency’s
implementation of the executive order.
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I just want to hit on a couple of things generally with regard to what is going to take place. For purposes of enforcement, visas that
have been issued by the Department of State prior to the effective date of the executive order are to be considered as valid for
travel and seeking entry into the United States unless revoked on an unrelated basis.
So what that – in very clear language, what that means is persons who have visas and show up at the ports of entry on a flight, on
a ship, or another method will be allowed to enter the United States unless there’s another reason for not being allowed in. So
someone who has a visa will be allowed to be admitted. If, for some reason, there is another basis, they will not. But generally and
in almost all cases, that will not apply. We can give some examples if people need them, but this happens on a routine basis:
people with visas who show up who there’s intelligence on them not being admitted, there’s criminal activity, fraudulent documents
– just the normal course of business.
So that is general. The executive order does not bar entry for individuals who are excluded from the suspension provision under
the terms of the EO who obtain a waiver from State or Customs or who demonstrate a bona fide relationship. USCIS is going to be
working in coordination with Department of State and Justice. They have developed guidance for their workforce regarding to the
adjudication of refugee applications. Both CBP and CIS have provided – have guidance for their employees and have been
working to make sure the employees are well versed in how the EO will be implemented.
Just two final things I’d like to add. We expect business as usual at the ports of entry starting at 8:00 p.m.tonight. There have been
reports of people who have already indicated that they would like to be there to either cause chaos or to protest. Lawyers have
indicated they would like to be at the ports of entry to assist people. That is – as long as they are in the public area of the airports,
that is completely their business as long as they abide by the guidance from the airport authorities.
It will be business as usual for us. We expect things to run smoothly, and our people are well-prepared for this and they will handle
the entry of people with visas professionally, respectfully, and responsibly, as they have always done, with an eye toward ensuring
that the country is protected from persons looking to travel here to do harm.
MODERATOR: Okay, [Senior Administration Official Four], thank you. Let’s go over to Department of Justice, [Senior
Administration Official Five]. Hi, [Senior Administration Official Five].
SENIOR ADMINISTRATION OFFICIAL FIVE: Hi. Thank you, everyone, for joining us. I just want to provide a brief update to
the extent we have it on the schedule going forward. There is no schedule yet as far as briefings, but the Solicitor General’s Office
expects that briefs will be due over the summer and that the arguments will likely take place the week of October 1st, which is the
beginning of the next Supreme Court term. Again, we don’t have finality on that, but that is the expectation within the Department
of Justice. And the arguments obviously and the briefing will cover the entire injunction. Obviously, a significant piece of that
injunction was lifted, but we will be hearing – arguing the whole case come October.
MODERATOR: Okay, thank you so much, [Senior Administration Official Five]. Let’s open it up now to questions with our first
reporter, please.
OPERATOR: Thank you. Ladies and gentlemen, it’s * then 1 to queue up for a question. We will be taking one question per
journalist. For additional questions, you will need to re-queue. Please pick up the handset before pressing the numbers. Once
again, that’s * then 1. And our first question from the AP and the line of Matthew Lee. Please, go ahead.
QUESTION: Thanks. I’d like to know how this fits in with the enhanced vetting that you’ve already put in that went into effect
about a month or so ago. And also, who decided that close family does not include grandparents, grandchildren, aunts, and
uncles? The argument is going to be made – is being made that this is an arbitrary and capricious distinction. And so how is it
exactly that you are able to defend that?
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SENIOR ADMINISTRATION OFFICIAL TWO: Yeah. So in terms of the decision for who was included in the definition of the
family relationship, we based that on the definition of family in the Immigration and Nationality Act and also what we saw in the
Supreme Court decision. So you will see some categories in addition to the basic definition in the INA.
OPERATOR: Thank you.
SENIOR ADMINISTRATION OFFICIAL TWO: And our – the enhanced vetting complements what is going to be happening
with regard to this decision. So even while we have this decision applying to certain nationalities, we continue to put into place
advanced – enhanced vetting measures and to continue to have the interagency conversation on how to implement those. So that
is all moving forward in tandem with this implementation.
SENIOR ADMINISTRATION OFFICIAL THREE: Could I add that under section six, relating to refugees, there’s also a call for
review of additional procedures for vetting of refugees. That’s to be conducted under the leadership of the Department of State.
We began that effort on June 23rd and will do so with our interagency partners.
MODERATOR: Okay. Next question, please.
OPERATOR: Thank you. From Bloomberg News, we’ll go to the line of Nick Wadhams. Please go ahead.
QUESTION: Hi. Can you tell us how many refugees and migrants you actually anticipate will be affected by the executive order?
So, in other words, who would have been able to come to the U.S. under the previous system who will now be barred? And then
also, can you tell us do you believe the current vetting procedures for refugees are significant – sorry – are sufficient? I mean, as
we know, it can take up to two years for a refugee to come into the United States, so do you believe that the current vetting
procedure – this really is a question for [Senior Administration Official Two] – whether you believe those procedures are already
sufficient. Thank you.
SENIOR ADMINISTRATION OFFICIAL THREE: Okay. On the refugee side, as of last night, we had admitted 49,009 refugees
in this fiscal year. There is a pipeline of folks who have been processed at different levels, and it’s a little bit difficult to pull that
apart, but there are additional refugees in the queue. It’s impossible right now to answer your question definitively, how many
refugees would be affected, because we’re going to have to go through the exemptions that are listed related to close family
relationships and relationships with entities. So I’m afraid we can’t give you a precise number. But I do want to say that under the
court’s ruling, there will be additional refugee arrivals based on those relationships following July 6th.
MODERATOR: Okay. Thank you. Next question, please.
OPERATOR: From The New York Times, we go to the line of Gardiner Harris. Please, go ahead.
QUESTION: Hi. Thanks for – so much for doing the call. Help me understand why you guys decided that refugee organizations
do not count as a bona fide relationship. They clearly believe that they are a bona fide relationship, that they create ties between
the refugees and communities in the United States, and lots of ties going on there. Why were they excluded?
SENIOR ADMINISTRATION OFFICIAL THREE: So the guidance that we have in the Supreme Court ruling is what I said to
you, that we have limited guidance as to what those entities would be, but they have to be formal and documented relationships
that were not created for the purposes of evading the executive order. While the SCOTUS ruling did provide some specific
examples related to visas, there were no specific examples related to refugees per se. So I think that we’re going to be working on
that, and I would defer to other agencies if they’d like to address it further.
OPERATOR: And next from the AFP, Paul Handley, your line is open.
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QUESTION: Hi. How do you – what do you do about people who have close relationships that don’t fit into your definitions? I
mean, some people are raised by their grandparents or raised by an aunt and they might be really close, but they don’t seem to
allow any room for that kind of relationship.
SENIOR ADMINISTRATION OFFICIAL TWO: The – what we’re going to do is look to see if an applicant qualifies under the
exemptions. And if they don’t have the requisite family relationship, if they would like to articulate a reason that we should
nevertheless waive the inadmissibility, they are certainly welcome to articulate that reason to us. And we will look at those cases
case by case, but it won’t be the relationship that will be the determining factor.
MODERTOR: Okay. Next.
OPERATOR: Very good. One moment for the next questioner. From Reuters, we go to the line of Arshad Mohammed. Please, go
ahead.
QUESTION: How does barring grandparents and grandchildren of people from the six relevant countries in the United States
make the United States safer? Question one. Question two: On the issue of refugees, the – both the guidance and the Supreme
Court ruling say that the relationship with an entity must be formal, documented, and formed in the ordinary course. It seems to me
that a relationship between a refugee and a refugee resettlement agency is formal, is documented, and is formed in the ordinary
course of events, not perforce as a result of the travel ban or the Executive Order 13780. So why doesn’t that count, in your view?
SENIOR ADMINISTRATION OFFICIAL TWO: Yeah. In terms of the first question, the guidance we have from the President is
to put a pause on certain travel while we review our security posture. And we have guidance on what types of relationships would
be exempted from the pause, and we are following our legal guidance in the Immigration and Nationality Act and what was in the
court decision in determining what constitutes the bona fide relationship.
SENIOR ADMINISTRATION OFFICIAL THREE: Okay. And as regards the question regarding resettlement agencies, as I
already said, we do have the indications from the Supreme Court, which you cited yourself. But as I noted already, there were
examples given specifically related to visa applicants but not related to refugees. And therefore, we’re proceeding on this based on
interagency consultations that we’ve already conducted and will be providing more guidance on it later.
MODERATOR: Next question.
OPERATOR: From The Wall Street Journal, we go to Felicia Schwartz. Please, go ahead.
QUESTION: Thanks for taking the question. The March executive order outlined a whole bunch of waivers in a section that
seems to give considerable flexibility to consular officers doing these interviews, and it looks like in the version of the cable that
I’ve reviewed that those waivers are preserved. Do you have a sense of how many people might be able to come through that
wouldn’t otherwise? Or is it your interpretation that there is flexibility for consular officers to let people through with those waivers?
SENIOR ADMINISTRATION OFFICIAL TWO: I mean, again, our goal is to meet the intent of the presidential directive in line
with the Supreme Court decision. Waivers still exist, and consular officers still have the ability to waive the inadmissibility for
certain types of applicants. I can’t predict how many applicants that will be, however.
MODERATOR: Go ahead. Next question.
OPERATOR: Thank you. From ABC News, Conor Finnegan, please go ahead.
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QUESTION: Hey. Thanks very much for doing the call. The Supreme Court ruling also mentioned specifically students who had
been admitted to universities, lecturers who were invited to speak in the United States. Will they be part of this bona fide
relationship as well? I know you’ve only really discussed the family portion of it. And if so, what’s the argument for why that is a
stronger connection to the United States than, say, grandparents or cousins?
SENIOR ADMINISTRATION OFFICIAL TWO: Yeah. I mean, again, we are looking at the court’s decision as we implement
this. And there were two different portions to the bona fide relationship. So we looked at the family relationships. And again, we
used the INA definition of family as our basis for that, in addition to some other language from the ruling. And in terms of the
entities with which one can have a relationship, yes, individuals who are students or who have lecturer positions and have an
established connection would be able to continue traveling on their visas or likely qualify for visas, again, according to an individual
consular officer decision.
MODERATOR: Next question, please.
OPERATOR: From The LA Times, Jaweed Kaleem. Please, go ahead.
QUESTION: Hi. Sorry. Just wanted to clarify – so refugees who currently, as of tonight, have permission to resettle in the U.S., no
matter where they are in the actual flights and no-flights process, can come, is that correct?
SENIOR ADMINISTRATION OFFICIAL THREE: The guidance that we’ve given to the field is that those folks, refugees who
are in transit through July 6th will be able to travel. We’ve defined “in transit” based on the previous work that we’ve done on these
executive orders as meaning that they have been booked to travel through July 6th, and then we will have to determine which folks
can travel after that date.
MODERATOR: Thanks. Next question, please.
OPERATOR: From NBC News, Pete Williams. Please, go ahead.
QUESTION: Hey there, this is Vaughn Hillyard filling in for Pete. For visa applicants, what is the actual effective date of the order?
And for refugees, what counts as an entity in the U.S.?
SENIOR ADMINISTRATION OFFICIAL TWO: For visa applicants, we will begin implementing at8:00 p.m. this evening,
Eastern Time.
SENIOR ADMINISTRATION OFFICIAL THREE: And as relates to refugees, I’m afraid that we go back to the guidance that we
have, that the entity has to demonstrate a formal documented relationship, those formed in the ordinary course of events and not
for the purposes of evading the executive order. We don’t have specific examples to offer right now.
MODERATOR: Next question, please.
OPERATOR: Next, we’ll go to the line of Carol Morello of The Washington Post. Please, go ahead.
QUESTION: Hi, thanks for doing this. Say – immigration lawyers say as many as half of all refugees have no close family ties in
the United States. I was wondering if that comports with your experience. And will the consular officials be – consular officers be
given any sort of quotas or percentages that they will be expected to aim for?
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SENIOR ADMINISTRATION OFFICIAL THREE: Our general experience is that something on the order of over 50 percent of
refugees have some kind of family tie with people already in the United States. We’re going to have to examine, though, case by
case to determine whether or not those family ties in each case are covered under the definitions that have been established here.
SENIOR ADMINISTRATION OFFICIAL TWO: There will be no quotas. Each case is going to be individually assessed as it
comes to us through the normal application process.
MODERATOR: We have one more question we have time for. As a reminder, we have folks from DHS and also the Department
of Justice on the phone, so if you want to direct any questions at them, you’re certainly more than welcome to. And let’s go to our
final question, then.
OPERATOR: From USA Today, Alan Gomez. Your line is open.
QUESTION: If the – if one of the goals here is to make sure this is an orderly rollout and people understand what’s going on, is
there going to be any kind of public guidance to people that will be affected by this? It’s one thing to have a background call with
D.C.-based reporters on this, but is there any plan to push this kind of information out into these countries and let these people
know what’s going to be going on?
SENIOR ADMINISTRATION OFFICIAL TWO: Yes. We have public guidance that is going to be posted on travel.state.gov
(http://travel.state.gov/), and we have also instructed our posts to use our public guidance as the basis for similar guidance in
their countries.
SENIOR ADMINISTRATION OFFICIAL THREE: I would just say that we’re already in consultation with our partners both
overseas and in the United States and have sent out guidance to them over the course of the last three days and will continue
doing so.
MODERATOR: Okay. Any other – any final comments from anyone at Justice, State, White House, or DHS?
SENIOR ADMINISTRATION OFFICIAL FOUR: This is [Senior Administration Official Four] at DHS. To the reporters on the
call, I would just ask, please, if you get a call from a source or see a tweet saying someone from one of these countries was
denied entry because they were from one of these six countries, even though they have a valid visa, please take a minute, call
DHS, call CBP Public Affairs, because what you’re being told is not accurate.
Upon arrival to a port of entry, travelers are still subject to inspection and must satisfy all requirements under federal law and
regulation. Individuals will not be denied entry based solely on their being a national from one of these countries. We want to help
you guys get the best facts on this and make sure the public is well informed and understand what’s happening, so please just, if
you hear any of those stories, please reach out to us. We will get you as much information as we can about – to try to correct the
record.
MODERATOR: Okay. Thank you. Anything else? (No response.)
All right. Well, I’d like to thank all of our participants for joining. Thanks to all the reporters for dialing in. I know a lot of interest on
this topic. Let me just say a final thank you to Justice – [Senior Administration Official Five] joined us; DHS, [Senior Administration
Official Four]; [Senior Administration Official Two] from the Department of State, Visa Services; [Senior Administration Official
Three] also from State Department, Population, Refugees, and Migration.
This was a background call. Attribution, as a reminder, is senior administration officials. The embargo will now be lifted. Any further
questions, let us know, and we look forward to briefing you later today. Have a good day now.
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