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, ).

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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]. EXHIBIT D 1/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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. 2/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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? 3/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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. 4/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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. 5/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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? 6/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States 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 (, 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. 7/8 6/29/2017 Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States The Office of Website Management, Bureau of Public Affairs, manages this site as a portal for information from the U.S. State Department. External links to other Internet sites should not be construed as an endorsement of the views or privacy policies contained therein. Note: documents in Portable Document Format (PDF) require Adobe Acrobat Reader 5.0 or higher to view, download Adobe Acrobat Reader ( 8/8

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