State of Hawaii v. Trump
Filing
297
MOTION for Leave to File Amici Curiae Brief Mateo Caballero appearing for Amicus Parties HIAS, International Refugee Assistance Project (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Certificate of Service)(Caballero, Mateo)
ACLU of Hawaiʻi Foundation
Mateo Caballero 10081
P.O. Box 3410
Honolulu, Hawaiʻi 96801
Tel: (808) 522-5908
Fax: (808) 522-5909
mcaballero@acluhawaii.org
Attorneys for Amici Curiae
(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.
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.
Civil Action No. 1:17-cv-00050-DKWKSC
BRIEF OF INTERNATIONAL
REFUGEE ASSISTANCE
PROJECT AND HIAS AS AMICI
CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION TO
CLARIFY SCOPE OF
PRELIMINARY INJUNCTION
ADDITIONAL COUNSEL
National Immigration Law Center
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: (213) 639-3900
Fax: (213) 639-3911
tumlin@nilc.org
espiritu@nilc.org
keaney@nilc.org
sung@nilc.org
National Immigration Law Center
Justin B. Cox
1989 College Ave. NE
Atlanta, GA 30317
Tel: (678) 404-9119
Fax: (213) 639-3911
cox@nilc.org
† pro hac vice forthcoming
Attorneys for Amici Curiae
American Civil Liberties Union
Foundation
Omar C. Jadwat†
Lee Gelernt†
Spencer E. Amdur†
David Hausman†
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212) 549-2600
Fax: (212) 549-2654
ojadwat@aclu.org
lgelernt@aclu.org
samdur@aclu.org
dhausman@aclu.org
American Civil Liberties Union
Foundation
Cody H. Wofsy†
39 Drumm Street
San Francisco, CA 94111
Tel: (415) 343-0770
Fax: (415) 395-0950
cwofsy@aclu.org
TABLE OF CONTENTS
INTRODUCTION ....................................................................................................1
BACKGROUND ......................................................................................................2
A. Prior Proceedings .............................................................................................2
B. The Government Plans to Apply the Ban to Refugees with Bona Fide
Connections to U.S. Entities ............................................................................3
C. HIAS and IRAP ...............................................................................................4
ARGUMENT ............................................................................................................5
A. The Injunction Protects Refugees Who Have Bona Fide Relationships to
U.S.-Based Refugee Assistance Entities .........................................................5
B. The Injunction Categorically Protects Numerous Categories of Refugees ..8
C. The Government May Not Suspend Any Component of the U.S. Refugee
Admissions Program ......................................................................................11
CONCLUSION.......................................................................................................11
i
INTRODUCTION
The government has grossly misconstrued the Supreme Court’s decision in
this case as it applies to refugees. The amici—International Refugee Assistance
Project (“IRAP”) and HIAS—are respondents in IRAP v. Trump who provide legal
and resettlement services to refugees. They respectfully ask this Court to clarify
that, under the Supreme Court’s order, the injunction of Sections 6(a) and 6(b) of
Executive Order 13780 continues to protect their clients, along with clients of
similarly situated organizations. By claiming the right to exclude such refugees,
the government is threatening to violate the Supreme Court’s clear instructions by
excluding thousands of refugees with bona fide connections to U.S. entities. The
amici also ask this Court to clarify that certain categories of refugees are
categorically exempt from the ban, and that the injunction prevents the government
from shutting down any component of the U.S. Refugee Admissions Program
(“USRAP”).1
1
Amici agree with Hawaii that the government has adopted an improperly
narrow interpretation of which individuals have “bona fide relationship[s] with . . .
person[s]” in the United States, and that the process set forth in the reported State
Department guidance improperly applies a presumption against the applicant. See
Mem. in Support of Emergency Motion to Clarify, Hawaii v. Trump, No. 17-50, at
7-11 (D. Haw. June 29, 2017). See Mem. in Support of Emergency Motion to
Clarify, Hawaii v. Trump, No. 17-50, at 7-11 (D. Haw. June 29, 2017).
1
BACKGROUND
A. Prior Proceedings
Executive Order 13780, which President Trump issued on March 6, 2017,
imposed two restrictions on refugee admissions. Section 6(a) suspended travel and
application processing under the U.S. Refugee Assistance Program (“USRAP”) for
120 days. Section 6(b) lowered the annual refugee cap for fiscal year 2017 from
110,000 to 50,000, and suspended entry of any refugees beyond that number.
The day before its effective date, this Court enjoined all of Section 6. See
Hawaii v. Trump, ___ F. Supp. 3d ___, 2017 WL 1011673, at *17 (D. Haw. Mar.
15, 2017) (temporary restraining order); Hawaii v. Trump, ___ F. Supp. 3d ___,
2017 WL 1167383, at *8-9 (D. Haw. Mar. 29, 2017) (preliminary injunction). On
appeal, the Ninth Circuit upheld the injunction as it applied to the ban in Section
6(a) and the lowered cap in Section 6(b). Hawaii v. Trump, ___ F.3d ___, 2017
WL 2529640, at *17-18, *21-23 (9th Cir. June 12, 2017).
The government filed a petition for certiorari and an application for a stay
pending appeal before the Supreme Court. On June 26, 2017, the Supreme Court
granted certiorari in this case and consolidated it with its companion case in the
Fourth Circuit, in which amici are plaintiffs. See Trump v. Int’l Refugee Assistance
Project (“IRAP”), 582 U.S. __, slip op. at 9 (2017). The Court also partially
stayed the injunctions in this case and IRAP.
2
It held that the injunctions
appropriately “covered not just respondents, but parties similarly situated to them.”
Id. at 10. But it stayed the injunctions to the extent they applied to “foreign
nationals abroad who have no connection to the United States at all.” Id. at 11.
The government therefore may not apply Sections 2(c), 6(a), or 6(b) against
“foreign nationals who have a credible claim of a bona fide relationship with a
person or entity in the United States.” Id. at 12, 13. For entities, the relationship
must be “formal, documented, and formed in the ordinary course, rather than for
the purpose of evading EO-2.” Id. at 12.
B. The Government Plans to Apply the Ban to Refugees with Bona Fide
Connections to U.S. Entities
Like the Hawaii plaintiffs, the IRAP plaintiffs contacted the government
numerous times seeking an explanation for how the government would implement
the Supreme Court’s partial stay.
The government failed to provide any
information throughout the days leading up to the June 29 effective date.
Finally, hours before it planned to begin implementing the bans, the
government posted a “Q&A” document on DHS’s website that revealed an
exceedingly narrow interpretation of the Supreme Court’s ruling. The Q&A stated
that clients of resettlement agencies and legal services providers lack a bona fide
relationship with a U.S. entity. See Dep’t of Homeland Security, FAQs on EO
3
13780, June 29, 2017 (“Q31”).2 Hours later, however, and after implementation of
the bans had begun, the Q&A was amended to remove that statement. The next
day, the State Department issued guidance confirming that it plans to ban refugees
despite a documented relationship with a U.S. resettlement agency.3
C. HIAS and IRAP
Amici are U.S.-based entities that provide a variety of services to refugees
seeking to resettle in the United States.
Both are plaintiffs in IRAP and
respondents in the consolidated case before the Supreme Court. HIAS is the
world’s oldest refugee resettlement agency. Hetfield Decl. ¶ 2. It is one of nine
agencies in the United States that contract with the federal government to assist
refugees throughout the resettlement process. Id. ¶ 16. IRAP provides direct legal
services to refugees and others seeking to escape violence and persecution. Heller
Decl. ¶ 2. Its staff and pro bono volunteers work directly with individuals abroad
throughout their application, travel, and resettlement processes. Id. ¶ 4.
2
Available at https://www.aclu.org/files/6.29-faq-homelandsecurity/2017.06.29v1_Frequently_Asked_Questions_Protecting_the_Nation_from
_Foreign_Terrorist_Entry.pdf
3
See Dep’t of State, Information Regarding the U.S. Refugee Admissions
Program, June 30, 2017, available at
https://www.state.gov/j/prm/releases/factsheets/2017/272316.htm.
4
ARGUMENT
Without any explanation, the government seeks to exclude thousands of
refugees who are clearly protected by this Court’s preliminary injunction. The
Supreme Court held that the government may not exclude foreign nationals who
can credibly claim a relationship to a U.S. person or entity.
And yet the
government plans to exclude clients of HIAS, IRAP, and similar U.S. entities, with
whom the entities have worked closely for years. Because the government has
failed to heed the Supreme Court’s instructions, the amici respectfully ask this
Court to clarify the scope of its injunction of Sections 6(a) and 6(b). Amici also
seek clarification that the government cannot shut down any component of USRAP
or apply the refugee ban to the programs that are categorically protected by the
injunction.
A. The Injunction Protects Refugees Who Have Bona Fide Relationships to
U.S.-Based Refugee Assistance Entities
The government’s plan to exclude the clients of entities like IRAP and HIAS
ignores the Supreme Court’s clear instructions. The Court expressly “le[ft] the
injunctions entered by the lower courts in place with respect to respondents and
those similarly situated.” Slip Op. at 9 (emphasis added). Both IRAP and HIAS
are respondents before the Supreme Court, and both of them “can legitimately
claim concrete hardship if [their clients] are excluded.” Id. at 13. The government
cannot apply Sections 6(a) or 6(b) to their clients or clients of similarly situated
5
entities, because those relationships are “formal, documented, and formed in the
ordinary course.” Slip Op. at 12. Indeed, by explaining that such relationships
would not suffice if they were formed “simply to avoid [the ban],” the Court made
clear that a documented relationship would suffice if the relationship is “formed in
the ordinary course, rather than for the purpose of evading EO-2.” Id.
Moreover, both HIAS and IRAP form relationships with their clients that are
at least as close as that between “a lecturer” and “an American audience.” Slip op.
at 12. Their client relationships illustrate the type of contact that is sufficient to
trigger the injunction’s protection. See id. (“The facts of these cases illustrate the
sort of relationship that qualifies.”).
HIAS forms relationships with its clients long before they reach the United
States. Hetfield Decl. ¶ 7-9. Its staff “develop strong bonds” with refugee clients
as they provide a host of legal and mental health services. Id. ¶ 10. Once a refugee
is assigned to HIAS for resettlement, HIAS provides a formal “assurance” to the
federal government that it will provide for the refugee’s entire resettlement
process. Id. ¶ 16. After providing assurances, HIAS and its affiliates identify and
rents housing, provide transportation from the airport, arrange for basic necessities
like rent, food, utilities, and medical care, facilitate enrollment in school and public
benefits programs, and provide ongoing case management services. Id. ¶ 17-21. It
is preposterous for the government to claim that this extensive, intimate, and
6
formally documented contact does not constitute a “bona fide relationship.” IRAP,
slip op. at 12. The Court should clarify that refugees who have documented
relationships with HIAS and the other eight resettlement agencies are protected by
the injunction.
IRAP’s client relationships are similarly extensive, formal, and documented.
It spends multiple weeks, or even months, interviewing prospective clients. Heller
Decl. ¶ 32-33. After executing a formal written agreement, id. ¶ 33, IRAP and
affiliated attorneys help their clients navigate the resettlement process often over
the course of multiple years.
Id. ¶ 33.
IRAP and its network of attorneys
investigate clients’ claims, draft legal submissions, prepare clients for interviews,
help navigate the USRAP, and often provide non-legal forms of practical
assistance, such as assisting with medical needs, mental health needs, housing, and
safe passage out of immediate danger. Id. ¶ 33-36. IRAP’s clients therefore have
a clear relationship with a U.S. entity.
The Court should clarify that the
government cannot apply Section 6(a)’s ban or Section 6(b)’s cap to any clients of
IRAP or any other U.S.-based provider of legal services to refugees.
The Supreme Court made clear why these relationships remain protected.
Because HIAS, IRAP, and similar entities have “bona fide relationship[s] with []
particular person[s]” entering as refugees, they can “legitimately claim concrete
hardship if th[ose] person[s] [are] excluded.” IRAP, slip op. at 13. As they have
7
explained in the attached declarations, their resources would be diverted, their prior
efforts would be wasted, and their staffs and budgets would be stretched thin were
their clients of many years to be banned from entering the United States through
the USRAP. See Hetfield Decl. ¶ 22; Heller Decl. ¶ 37-38. The same is true for
other entities that assist refugees in the resettlement process, who also continue to
be protected.
As the Supreme Court made clear, its examples of bona fide
relationships were meant only to illustrate, not exhaust, the kinds of relationships
that the injunction continues to cover. Slip op. at 12 (“The facts of these cases
illustrate the sort of relationship that qualifies.”) (emphasis added). Notably, these
relationships in no way resemble the one example the Supreme Court gave of a
relationship that would not be bona fide: a non-profit that “contact[s] foreign
nationals” and adds them to client lists “simply to avoid” the Executive Order. Id.
B. The Injunction Categorically Protects Numerous Categories of Refugees
In its guidance regarding visa applications, the government properly
recognized that many categories of visas are categorically exempt under the
Supreme Court’s decision. See Dep’t of State, Executive Order on Visas, June 29,
2017.4
The exact same thing is true of many USRAP programs, yet the
government has failed to issue corresponding categorical exemptions.
4
Available at https://travel.state.gov/content/travel/en/news/importantannouncement.html.
8
A number of USRAP programs are only available to refugees who have a
verified close relationship to a person or entity in the United States. IRAP, slip op.
at 12. In each of these programs, the State Department must determine that the
relationship is bona fide before the refugee can even apply. This Court should
therefore clarify that refugees in the following programs are categorically protected
from the ban:
Priority 3 Family Reunification. Refugees who enter through the Priority 3
process must be parents, minor unmarried children, and spouses of
individuals who were recently admitted into the United States as refugees or
asylees. They must file an Affidavit of Relationship and undergo DNA
testing to verify the familial relationship.5
I-730 Beneficiaries. The I-730 process is only available to spouses and
minor unmarried children of refugees in the United States. See DHS Form I730.6
Syrian Direct Access Program. This program covers Syrian nationals with
an approved I-130 petition, which is limited to spouses, children, parents,
and siblings of individuals in the United States.7
5
Dep’t of State, Proposed Refugee Admissions for Fiscal Year 2017, at 1213, available at https://www.state.gov/documents/organization/262168.pdf.
6
Available at https://www.uscis.gov/i-730.
9
Iraqi Direct Access Program. This program covers two groups of Iraqis: I130 petitioners who are necessarily close relatives of U.S. citizens or legal
permanent residents (like the Syrian program), and “U.S.-affiliated Iraqis”
who are at risk of persecution based on their employment with the U.S.
government, a U.S.-based media organization, or a U.S. government-funded
entity “closely associated with the U.S. mission in Iraq.”8
Central American Minors Program. This program allows children from El
Salvador, Guatemala, and Honduras to petition for refugee status if they
have a parent who is lawfully present in the United States. This program
also requires DNA testing to verify the family relationship.9
Lautenberg Program. This program covers certain religious minorities from
Eurasia and the Baltics who have “close family in the United States.”10
7
See Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and
Syrian Beneficiaries of an Approved I-130 Petition, Mar. 11, 2016, available at
https://www.state.gov/j/prm/releases/factsheets/2016/254649.htm.
8
See generally U.S. Dep’t of State, Bureau of Population, Refugees, &
Migration, Fact Sheet: U.S. Refugee Admissions Program (USRAP) Direct Access
Program
for
U.S.-Affiliated
Iraqis
(Mar.
11,
2016),
https://www.state.gov/j/prm/releases/factsheets/2016/254650.htm.
9
See Dep’t of State, Central American Minors (CAM) Program, available at
https://www.state.gov/j/prm/ra/cam/index.htm.
10
See Dep’t of State, Proposed Refugee Admissions for Fiscal Year 2017,
Sept. 15, 2016, available at
https://www.state.gov/j/prm/releases/docsforcongress/261956.htm.
10
C. The Government May Not Suspend Any Component of the U.S. Refugee
Admissions Program
Since the Supreme Court’s ruling on June 26, the government has suggested
that it plans to suspend certain components of the refugee pipeline in July,
including travel bookings. See Hetfield Decl. ¶ 25; Heller Decl. ¶ 26; Dep’t of
State, Background Briefing on the Implementation of Executive Order 13780, June
29, 2017. But because the government has refused to provide official information
on this topic, there has been no confirmation as to whether these reports are true.
It would plainly violate this Court’s injunction for the government to shut
down interviews or travel under the USRAP based on the Section 6(a) ban or the
Section 6(b) cap, because refugees “who can credibly claim a bona fide
relationship with a person or entity in the United States” cannot be subject to either
provision. See IRAP, slip op. at 13. Accordingly, the Court should clarify that all
components of the USRAP must remain in operation.
CONCLUSION
The Court should grant Hawaii’s motion to clarify.
11
DATED: Honolulu, Hawai`i, June 30, 2017.
/s/ Mateo Caballero
Mateo Caballero
10081
ACLU of Hawaiʻi Foundation
P.O. Box 3410
Honolulu, Hawaiʻi 96801
Tel: (808) 522-5908
Fax: (808) 522-5909
mcaballero@acluhawaii.org
National Immigration Law Center
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: (213) 639-3900
Fax: (213) 639-3911
tumlin@nilc.org
espiritu@nilc.org
keaney@nilc.org
sung@nilc.org
National Immigration Law Center
Justin B. Cox
1989 College Ave. NE
Atlanta, GA 30317
Tel: (678) 404-9119
Fax: (213) 639-3911
cox@nilc.org
† pro hac vice forthcoming
American Civil Liberties Union
Foundation
Omar C. Jadwat†
Lee Gelernt†
Spencer E. Amdur†
David Hausman†
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212) 549-2600
Fax: (212) 549-2654
ojadwat@aclu.org
lgelernt@aclu.org
samdur@aclu.org
dhausman@aclu.org
American Civil Liberties Union
Foundation
Cody H. Wofsy†
39 Drumm Street
San Francisco, CA 94111
Tel: (415) 343-0770
Fax: (415) 395-0950
cwofsy@aclu.org
Attorneys for Amici Curiae
12
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