State of Hawaii v. Trump

Filing 301

MEMORANDUM in Opposition re #293 Emergency MOTION to Clarify Scope of Preliminary Injunction re #291 Preliminary Injunction, filed by John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Attachments: #1 Declaration of Lawrence E. Bartlett & Att. 1-3, #2 Exhibit A: Department of State FAQs, #3 Exhibit B: Emails from Rosenberg to Katyal, #4 Exhibit C: Department of State Fact Sheet re Refugee Program, #5 Exhibit D: Department of Homeland Security FAQs, #6 Certificate of Service)(Rosenberg, Brad)

JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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.

No. 1:17-cv-00050-DKWKSC
DEFENDANTS’
OPPOSITION TO
EMERGENCY MOTION
TO CLARIFY SCOPE OF
PRELIMINARY
INJUNCTION
Judge: Hon. Derrick K.
Watson
Related Documents:
Dkt. No. 293

TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1
BACKGROUND .................................................................................................... 4
1.

The Court’s Preliminary Injunction and the Supreme
Court’s Stay ........................................................................................ 4

2.

Implementation of EO-2 Following the Supreme Court’s Stay........ 5

ARGUMENT .......................................................................................................... 7
I.

The Government’s Definition of Close Family Member
is Consistent with the INA and the Supreme Court’s
Decision. ............................................................................................. 7

II.

A Sponsorship Assurance for a Refugee Seeking Admission
is Insufficient in and of Itself to Establish a Qualifying
Relationship. ..................................................................................... 13
A. Assurances Provided by Refugee Resettlement Agencies
Do Not Constitute a Qualifying Bona Fide Relationship
Between a Refugee and a U.S.-Based Organization. ................. 14
B. Amici IRAP’s Claim That Representational Activity
Creates a Bona Fide Relationship Between an Organization
and a Refugee is Not Ripe .......................................................... 20

III.

The Government Is Properly Implementing the Supreme
Court’s “Credible Claim” Standard. ................................................ 21

CONCLUSION ..................................................................................................... 25

i

TABLE OF AUTHORITIES
CASES
Corley v. United States,
556 U.S. 303 (2009) .............................................................................................18
Hawaii v. Trump,
--- F.3d ---, No. 17-15589, 2017 WL 2529640 (9th Cir. June 12, 2017) ...............4
Hedges v. Dixon Cty.,
150 U.S. 182 (1893) .............................................................................................10
In re Shoreline Concrete Co.,
831 F.2d 903 (9th Cir. 1987) ................................................................................10
INS v. Hector,
479 U.S. 85 (1986) ...............................................................................................10
Moore v. City of East Cleveland,
431 U.S. 494 (1977) .............................................................................................11
Moreno-Morante v. Gonzales,
490 F.3d 1172 (9th Cir. 2007) ..............................................................................10
Scialabba v. Cuellar de Osorio,
134 S. Ct. 2191 (2014) .................................................................................... 8, 10
Trump v. International Refugee Assistance Project,
Nos. 16-1436 & 16-1540, Slip op. (U.S. June 26, 2017) ............................. passim
United States v. Felipe,
No. 94 Cr. 395 (JSM), 1997 WL 278111 (S.D.N.Y. May 22, 1997) ...................11
STATUTES
8 U.S.C. §§ 1101, et seq.............................................................................................2
8 U.S.C. § 1101(a)(15)(K) .........................................................................................9
ii

8 U.S.C. § 1101(b)(1)-(2) ..........................................................................................9
8 U.S.C. § 1151(b)(2)(A)(i) ................................................................................ 9, 10
8 U.S.C. § 1153(a) .............................................................................................. 9, 10
8 U.S.C. § 1157 ........................................................................................................10
8 U.S.C. § 1182(a)(3)(D)(iv) .....................................................................................9
8 U.S.C. § 1184(b) ...................................................................................................24
8 U.S.C. § 1184(d) .....................................................................................................9
8 U.S.C. § 1201(g) ...................................................................................................25
8 U.S.C. § 1361 ........................................................................................................23
National Defense Authorization Act for Fiscal Year 2008
Pub. L. No. 110-181, 122 Stat. 3 ............................................................................9
REGULATIONS
22 C.F.R. § 41.11(b) ................................................................................................24
22 C.F.R. §§ 41.101-41.121 .....................................................................................24
22 C.F.R. §§ 42.61- 42.81 ........................................................................................24
Exec. Order 13,780, 82 Fed. Reg. 13209 (March 6, 2017) ............................. passim
OTHER AUTHORITIES
9 Foreign Affairs Manual 102.8-3 .............................................................................9
9 Foreign Affairs Manual 304.3-1 ...........................................................................24
9 Foreign Affairs Manual 306.2-2(A)......................................................................25
iii

INTRODUCTION
The Supreme Court granted certiorari in this case and, in so doing, partially
lifted this Court’s preliminary injunction regarding Sections 2(c), 6(a), and 6(b) of
Executive Order 13,780. See Trump v. Int’l Refugee Assistance Project, Nos. 161436 and 16-1540 (U.S. June 26, 2017) (per curiam) (“Slip Op.”); Executive Order
13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) (“EO-2”). The Supreme Court’s opinion
allows those provisions of the Executive Order to take effect, save for individuals
who “have a credible claim of a bona fide relationship with a person or entity in the
United States.” Slip Op. at 12. “For individuals, a close family relationship is
required.” Id. For entities, “the relationship must be formal, documented, and
formed in the ordinary course, rather than for the purpose of evading EO-2.” Id.
Sections 2(c), 6(a), and 6(b) became effective, to the extent covered by the
Supreme Court’s stay, on June 29, 2017. However, because the Supreme Court’s
stay did not precisely track the relief sought by the parties, the Government’s
implementation of that relief required it to study the ruling and governing law,
coordinate among multiple Government agencies, and issue detailed guidance on
implementation of the Supreme Court’s stay, all within 72 hours. Most of the
guidance was finalized the afternoon of June 29, 2017, absent a few subsequent
modifications as issues were identified or further analyzed.

Despite these efforts, Plaintiffs challenge the Government’s compliance with
the Supreme Court’s decision on three grounds, none of which has merit. Plaintiffs
first contend the Government is too narrowly construing the phrase “close familial
relationship.” See Mem. in Support of Emergency Mot. to Clarify Scope of Prelim.
Inj. (“Pls.’ Mem.”) at 7-11, ECF No. 293-1. The scope of the Government’s
definition, however, hews closely to the categorical determinations articulated by
Congress in the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101, et seq.,
which frames the backdrop for federal immigration policy, including the Executive
Order. The Supreme Court’s decision construing the Executive Order must also be
read as having that touchstone in mind, not the broader, free-hand rules now
constructed by Plaintiffs. (To the extent Plaintiffs have challenged the initial
exclusion of fiancés from the definition of “close familial relationship,” the
Government has clarified in subsequent guidance that fiancés are included.)
Second, Plaintiffs argue that a sponsorship assurance from a refugee
resettlement agency is, by itself, sufficient to create a qualifying “bona fide
relationship” for a refugee with a U.S.-based entity. See Pls.’ Mem. at 11-13.
Plaintiffs’ reading of the Supreme Court’s decision, however, misconstrues the
fundamental structure of the U.S. Refugee Assistance Program (“Refugee
Program”). Under the Refugee Program, a refugee’s relationship with a resettlement
agency is created by direction of the Government through a cooperative agreement
2

entered into between the Government and the agency. In other words, a refugee’s
relationship with the agency flows from the Government, not from an independent
relationship between the refugee and the resettlement agency.

Allowing this

Government-structured, universal refugee relationship to count as the sort of
relationship the Supreme Court had in mind would render the Court’s stay governing
the refugee provisions largely meaningless, creating the proverbial exception that
swallows the Court’s articulated rule. Amici International Refugee Assistance
Project and HIAS make a related argument that the Government cannot apply
Sections 6(a) and 6(b) to refugees who are clients of U.S.-based entities that provide
assistance to refugees abroad, but this issue is not even ripe.
Third, and finally, Plaintiffs attempt to create a dispute where there is none.
Plaintiffs claim that the Government is failing to implement the Supreme Court’s
standard that a foreign national must have a “credible claim” of a bona fide
relationship with a U.S.-based person or entity. But the Government’s guidance
explicitly references and incorporates this very standard. This claim thus provides
no basis for relief.
Accordingly, this Court should deny Plaintiffs’ motion. Should the Court
grant any relief to Plaintiffs, however, the Government respectfully requests that the
Court stay that relief pending the filing by the Government and disposition of an
immediate request to the Supreme Court for clarification of its ruling.
3

BACKGROUND
1.

The Court’s Preliminary Injunction and the Supreme Court’s Stay
The Court issued a preliminary injunction on March 29, 2017, ECF No. 270,

which was affirmed in part and vacated in part by the Ninth Circuit. See Hawaii v.
Trump, --- F.3d ---, 2017 WL 2529640 (9th Cir. June 12, 2017) (per curiam). After
the mandate was issued, this Court amended its preliminary injunction to comply
with the Ninth Circuit’s decision. See ECF No. 291.
On June 26, 2017, the Supreme Court granted certiorari in this case and Trump
v. International Refugee Assistance Project (“IRAP”). In so doing, the Court granted
a significant part of the Government’s application to stay the preliminary injunctions
entered in this case and in IRAP. See Slip Op. at 9-13. Regarding the suspension of
entry provision in Section 2(c) of the Executive Order, the Supreme Court held that
the injunction against that provision remains in effect only for “foreign nationals
who have a credible claim of a bona fide relationship with a person or entity in the
United States.” Id. at 12. In defining a qualifying relationship for persons, the Court
stated that “a close familial relationship is required.” Id. As for entities, “the
relationship must be formal, documented, and formed in the ordinary course, rather
than for the purpose of evading EO-2.” Id. The Court also made clear, however,
that “[a]ll other foreign nationals are subject to the provisions of EO-2.” Id.
(emphasis added).
4

The Court reached an analogous conclusion regarding Section 6(a) of the
Executive Order, which suspends aspects of the Refugee Program for 120 days, and
Section 6(b) of the Executive Order, which imposes a 50,000 person cap on refugee
admissions for fiscal year 2017. See id. at 13. Applying the same “equitable
balance” as it did for Section 2(c), the Court held that “[a]n American individual or
entity that has a bona fide relationship with a particular person seeking to enter the
country as a refugee can legitimately claim concrete hardship if that person is
excluded. As to these individuals and entities, we do not disturb the injunction.” Id.
For refugees who lack such a connection, however, “the balance tips in favor of the
Government’s compelling need to provide for the Nation’s security.” Id. For “all
[of those] other individuals, the provisions may take effect.” Id.
2.

Implementation of EO-2 Following the Supreme Court’s Stay
As the Supreme Court noted, the President issued a memorandum to

Executive Branch officials on June 14 clarifying that the effective date of the
enjoined provisions of the Executive Order would “be the date on which the
injunctions in these cases ‘are lifted or stayed with respect to that provision.’” Id. at
7 (quoting Presidential Memorandum for the Secretary of State, the Attorney
General, the Secretary of Homeland Security, and the Director of National
Intelligence (June 14, 2017), 82 Fed. Reg. 16279 (“Presidential Mem.”). That
memorandum also directed the relevant agencies to begin implementing Sections 2
5

and 6 of the Executive Order 72 hours after applicable injunctions are lifted or stayed
with respect to those provisions. See Presidential Mem. Because the Supreme Court
issued its stay on June 26, the Government began implementation on June 29, and
specifically commenced enforcement of Sections 2(c), 6(a), and 6(b) at 8:00 p.m.
Eastern that day.
As noted, the relief granted by the Supreme Court, while substantial, was
different in scope than the Government had requested. As a result, to prepare
guidance for the relevant agencies and the public-at-large regarding the
implementation of Sections 2(c), 6(a), and 6(b) to the extent permitted by the
Supreme Court’s stay, coordination was required among multiple Government
agencies regarding numerous topics of legal and factual complexity. Accordingly,
most of the guidance was not finalized until the afternoon of June 29, 2017 and, even
after some of the guidance was released, revisions and changes were made as
additional issues were identified or further analyzed.
Between June 27 and June 29, Plaintiffs’ counsel and counsel in IRAP sent a
series of emails to Government counsel regarding the implementation of the
Executive Order in light of the Supreme Court’s stay. During this period, however,
the Government was still developing its guidance to address the Supreme Court’s
stay order. The Government was not in the position to provide an immediate,
substantive response in view of the unique features of the stay order. Nor would it
6

have benefitted either Plaintiffs or the Government to share non-final conclusions
during the Government’s deliberative process. The Government concluded that
process as expeditiously as possible, publishing information on June 29, before
enforcement of Sections 2(c), 6(a), and 6(b) would commence.
As the guidance was officially issued, the Government informed Plaintiffs of
that guidance and provided relevant links to the publicly available materials. The
Government also informed Plaintiffs of a subsequent change in guidance regarding
the treatment of fiancés. While previously-issued guidance had indicated that
fiancés would not be considered to be close family members for purposes of applying
the Supreme Court’s decision, that guidance was subsequently updated to indicate
that fiancés would, in fact, satisfy the Supreme Court’s “close familial relationship”
test. See Department of State, Executive Order on Visas (June 29, 2017) at 3,
attached hereto as Ex. A. Plaintiffs were informed that the guidance regarding
fiancés was being reviewed and, subsequently, updated. See June 29, 2017 emails,
attached hereto as Ex. B.
ARGUMENT
I.

The Government’s Definition of Close Family Member is Consistent
with the INA and the Supreme Court’s Decision.
As the Supreme Court instructed, not all relationships with a person in the

United States suffice to fall outside the stay and within the injunction. Indeed, not
7

even all familial relationships suffice; rather, a “close familial relationship” is
required. Slip Op. at 12 (emphasis added). Plaintiffs do not dispute that the Supreme
Court’s standard requires delineating some family relationships from others.
Under the Government’s definition of “close familial relationships,” as used
in the Supreme Court’s decision, the following relationships are exempt from the
Executive Order: parent (including parent-in-law), spouse, fiancé, child, adult son
or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step
relationships.

To avoid any confusion, the Government emphasizes that its

definition of “close family” does include fiancé.
The Government’s definition, however, does not include grandparents,
grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sistersin-law, and any other “extended” family members. These delineations as to the
definition of “close family” are rooted in what Plaintiffs have described as “the
INA’s finely reticulated system of immigration controls.” Pls.’ Mot. for TRO at 24,
ECF No. 65-1.

Indeed, the Government’s categorical implementation of the

standard the Court’s balancing struck reflects policy in the INA that categorically
privileges certain family relationships over others. See Scialabba v. Cuellar de
Osorio, 134 S. Ct. 2191, 2197-98 (2014) (plurality opinion). Section 201 of the INA
defines “immediate relatives”—the “most favored” family-based immigrant visa
category, id. at 2197—as “the children, spouses, and parents” of U.S.
8

citizens. 8 U.S.C. § 1151(b)(2)(A)(i). Step-relationships are included in the INA’s
definitions of “child” and “parent.”

See id. § 1101(b)(1)-(2).

Section 203,

concerning family-based preferences in allotting numerically-limited visas,
specially privileges the following relationships: unmarried and married sons and
daughters (age 21 or older) of U.S. citizens; siblings of U.S. citizens; and spouses,
unmarried children under the age of 21, and unmarried sons and daughters (age 21
or older) of lawful permanent residents. See id. § 1153(a). Half-siblings are included
in the sibling preference. See 9 Foreign Affairs Manual 102.8-3. The fiancé
relationship, as well, is recognized and given special accommodation in the INA.
See 8 U.S.C. §§ 1101(a)(15)(K), 1184(d). The Government’s definition treats all
these family relationships as “close family” within the Supreme Court’s meaning.
Other statutory provisions confirm this conclusion.

Within the INA, a

provision that establishes one of the various particular grounds on which aliens are
inadmissible also builds in an “[e]xception for close family members,” with
reference specifically to “parent, spouse, son, daughter, brother, or sister”
relationships. 8 U.S.C. § 1182(a)(3)(D)(iv). A law concerning Iraqi refugees
enacted in 20081 employed the phrase “close family members” and stated that the

1

This law, the Refugee Crisis in Iraq Act of 2007, is found at Subtitle C, sections
1241-49 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L.
No. 110-181, 122 Stat. 3 (codified as amended at 8 U.S.C. § 1157 note).
9

phrase’s meaning is “described in section 201(b)(2)(A)(i) or 203(a) of the
Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i) and 1153(a)).” Those
statutes, of course, are the same sections of the INA on which the Government
primarily relies here. In contrast to those “close family” relationships, the INA does
not grant any immigration benefit for grandparents, grandchildren, brothers-in-law,
sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United
States. See Cuellar de Osorio, 134 S. Ct. at 2213 (noting that “the grandchildren,
nieces, or nephews of citizens [are] relationships [that] d[o] not independently entitle
[those family members] to visas”); INS v. Hector, 479 U.S. 85 (1986) (per curiam)
(holding that INA did not permit consideration of hardship to niece of deportee,
notwithstanding de facto parent-child relationship); Moreno-Morante v. Gonzales,
490 F.3d 1172, 1175-78 (9th Cir. 2007) (similar as to grandchild).
Plaintiffs try to sweep in a host of extended family relationships that Congress
in the INA did not privilege, but provide no explanation to justify overriding the INA
as the best reference for line-drawing. The posture here is one of equitable relief,
and “a fundamental principle of equity jurisprudence is that ‘equity follows the
law.’” In re Shoreline Concrete Co., 831 F.2d 903, 905 (9th Cir. 1987) (quoting
Hedges v. Dixon Cty., 150 U.S. 182, 192 (1893)). Here, the relevant law is plainly
the INA. Plaintiffs forego reliance on that authority, instead inventing a new, ad hoc
definition of “close family” for purposes of a case involving federal immigration
10

law. Tellingly, however, the principal authority they cite is a decision addressing a
local housing ordinance. See Pls.’ Mem. at 10 (citing Moore v. City of East
Cleveland, 431 U.S. 494, 504 (1977)). Even were the Court to accept Plaintiffs’
invitation to craft a standard unmoored to Congressional determination of federal
immigration law, Plaintiffs’ classifications lack any universal or cohesive support.
After all, the phrase “close family member” is frequently construed more narrowly
than Plaintiffs’ definition, see, e.g., United States v. Felipe, 1997 WL 278111, at *1
(S.D.N.Y. May 22, 1997) (noting concession that “a sister-in-law and a niece” did
not “fit the normal definition of ‘close family member’”), and, as noted above,
uniformly is so under the INA.
The Supreme Court’s reference to Dr. Elshikh’s mother-in-law as having a
“close familial relationship” does not support departing from the INA as a
touchstone. The Supreme Court did not declare that “mother-in-law” is a “close
familial relationship”; rather, the Supreme Court examined “[t]he facts of the[]
cases” presented to it, Slip Op. at 12, from which it was apparent that Dr. Elshikh’s
mother-in-law would in fact have a qualifying relationship as the mother of Dr.
Elshikh’s wife (herself an American citizen). See Elshikh Decl. ¶¶ 1, 4, ECF No.
66-1. The statement that this particular individual has a “close familial relationship”
was not a categorical determination to privilege the mother-in-law relationship here,
even though Congress in the INA did not. Nevertheless, out of an abundance of
11

caution given the potential ambiguity created by the Supreme Court’s phrasing, the
Government’s definition includes parents-in-law and children-in-law.2
Plaintiffs seek to justify their broader classifications by reading the Supreme
Court’s decision as focused solely on whether “an alien had ‘no connection to the
United States at all’ and exclusion did ‘not burden any American party.’” Pls.’
Mem. at 11 (quoting Slip Op. at 11) (emphasis added by Plaintiffs). That reading is
plainly wrong. The Supreme Court unambiguously excluded all other relationships
with individuals, no matter how close: “For individuals, a close familial relationship
is required.” Slip Op. at 12 (emphasis added).
Finally, Plaintiffs ignore that the Supreme Court’s use of the phrase “close
familial relationship” is almost identical to language used in the Executive Order
itself. Specifically, the Order’s waiver provisions—discussed by the parties in their
Supreme Court filings—indicate that a waiver of Section 2(c)’s entry suspension
may be appropriate where a “foreign national seeks to enter the United States to visit

2

Importantly, as with Dr. Elshikh’s mother-in-law, parents-in-law of persons in the
U.S. will typically also be parents of persons in the U.S., because spouses typically
live together. By contrast, siblings-in-law of persons in the U.S. are far less likely
to be siblings of persons in the U.S., because siblings often live apart. Thus, the
categorical inclusion of parents-in-law does not justify the categorical inclusion of
siblings-in-law. Of course, a particular U.S. person’s sibling-in-law may be covered
through their relationship with a sibling or spouse who in fact is in the U.S., just as
a particular U.S. person’s grandmother or aunt, while not categorically included as
close family, may be covered as the mother of a different U.S. person.
12

or reside with a close family member (e.g., a spouse, child, or parent) who is a United
States citizen, lawful permanent resident, or alien lawfully admitted on a valid
nonimmigrant visa, and the denial of entry during the suspension period would cause
undue hardship[.]”

EO-2 § 3(c)(iv) (emphasis added).

The Order itself thus

provides a further guidepost as to what the Supreme Court anticipated would qualify
as a “close familial relationship.” See also Slip Op. at 12 (citing the Order’s waiver
provisions as reflecting aspects of “the Government’s interest in enforcing” the
Order). The illustrative examples used in the Order—spouse, child, and parent—do
not support Plaintiffs’ attempt to impose a much more expansive definition.
For all of these reasons, the Government’s INA-based definition of “close
familial relationship” comports with the Supreme Court’s narrowing of the
injunction. The Court should reject Plaintiffs’ attempt to broaden the injunction to
reach extended family relationships.
II.

A Sponsorship Assurance for a Refugee Seeking Admission is
Insufficient in and of Itself to Establish a Qualifying Relationship.
The Supreme Court stayed the preliminary injunction regarding Sections 6(a)

and 6(b) of the Executive Order, except for any “individual[s] seeking admission as
a refugee who can credibly claim a bona fide relationship with a person or entity in
the United States.” Slip Op. at 13. Plaintiffs and the amici, the International Refugee
Assistance Project and HIAS (hereinafter “IRAP/HIAS” and “Amicus Br.”), both
13

argue that a sponsorship assurance by a resettlement agency is sufficient—in and of
itself—to establish such a relationship.

Amicus IRAP further argues that its

activities representing and providing other assistance to refugees abroad in the
admission process create a qualifying bona fide relationship. Plaintiffs’ and Amici’s
first argument is wrong and would largely eviscerate the Supreme Court’s order as
to refugees. And their second argument is not ripe.
A.

Assurances Provided by Refugee Resettlement Agencies Do Not
Constitute a Qualifying Bona Fide Relationship Between a
Refugee and a U.S.-Based Organization.

To implement the Refugee Program, the Department of State enters into
annual cooperative agreements with non-profit resettlement agencies in the United
States. See Decl. of Lawrence E. Bartlett (“Bartlett Decl.”) ¶¶ 14-15 (attached
hereto). Currently, nine agencies have entered into agreements with the United
States to provide resettlement services. Id. ¶ 14.3 Before any refugee is admitted to
the United States under the Refugee Program, the Department of State obtains a
commitment (called an “assurance”) from a resettlement agency. Id. ¶ 16 & Att. 3.
As part of its assurance, the resettlement agency agrees that, once the refugee arrives

3

The nine resettlement agencies are Church World Service, Episcopal Migration
Ministries, Ethiopian Community Development Council, HIAS, International
Rescue Committee, Lutheran Immigration and Refugee Service, United States
Committee for Refugees and Immigrants, United States Conference of Catholic
Bishops, and World Relief. Id.
14

in the United States, the resettlement agency will provide certain benefits for that
refugee in exchange for payment from the Government. Id. ¶ 20. The cooperative
agreement specifies the services that the resettlement agency must provide to each
refugee and provides Government-funded compensation to the resettlement agency
for doing so. Id. ¶ 15 & Att. 2. The services provided by resettlement agencies and
their local affiliates throughout the country include placement, planning, reception,
and basic needs and core service activities for arriving refugees. Id. ¶ 20. Once a
particular refugee has been approved by the Department of Homeland Security and
provides satisfactory medical results, the refugee is assigned to a resettlement
agency, which submits the assurance agreeing to provide the required services if and
when the refugee arrives in the United States. Id. ¶¶ 13-14 & Att. 3.
Such a Government-arranged assurance is not a qualifying “bona fide
relationship” between the refugee and “a[n] . . . entity in the United States.” Slip
Op. at 13. The assurance itself is not an agreement between the resettlement agency
and the refugee; rather, it is an agreement between the agency and the Government
in which the resettlement agency agrees to furnish resettlement services to a
particular refugee on the Government’s behalf, utilizing funds provided by the
Government. Indeed, resettlement agencies typically do not have any direct contact
with the refugees they assure before their arrival in the United States. Id. ¶ 21.
Rather, the resettlement agency works with individuals and organizations in the
15

United States, including any U.S. ties a refugee may otherwise have in the United
States, to prepare for the refugee’s arrival without directly interacting with the
refugee abroad. Id.
The indirect link between a resettlement agency and refugee that results from
such an assurance is in stark contrast to the sort of relationship the Supreme Court
identified as sufficient in its order. Unlike students who have been admitted to study
at an American university, workers who have accepted jobs at an American
company, and lecturers who come to speak to an American audience, see Slip Op.
at 12, resettlement agencies do not have any freestanding connection to a refugee by
virtue of the sponsorship assurance that is separate and apart from the Refugee
Program. Therefore, the exclusion of an assured refugee could not even plausibly
be thought to “burden” a resettlement agency, apart from its ability to perform the
resettlement services for which the Government has contracted with it to provide.
Id. at 11.
A declaration submitted with the IRAP/HIAS amicus brief notes that, “after a
refugee has been given an assurance, . . . HIAS and its affiliates begin the involved
process of arranging for the reception, placement, and appropriate initial
resettlement assistance for the refugee” by identifying housing, arranging for
necessities, and the like. Decl. of Mark Hetfield, President and CEO of HIAS, Inc.
¶ 18, ECF No. 297-3; see Amicus Br. at 6. But these services are a component of
16

the Refugee Program itself, and they are performed as a result of HIAS’s cooperative
agreement with the Government, not any agreement or other independent
relationship HIAS has with a particular refugee.

Indeed, as noted above,

resettlement agencies usually do not have direct contact with the refugees before
their arrival in this country.4
Indeed, Plaintiffs’ and amici’s contrary position that a sponsorship assurance
alone establishes a qualifying bona fide relationship would largely eviscerate the
Supreme Court’s stay ruling with respect to the Executive Order’s refugee
provisions, creating an exception to the Supreme Court’s order that swallows the
rule. The Supreme Court made clear it was staying the preliminary injunction
against Sections 6(a) and 6(b) in part, declaring that those sections “may take effect”
“[a]s applied to all other individuals” who do not have the requisite relationship.
Slip Op. at 13. Because the Department of State obtains an assurance from a
resettlement agency for every refugee who is admitted to the United States before
the refugee enters, Bartlett Decl. ¶ 16, every refugee who was found to satisfy the

4

There may be instances in which an entity that performs services as a resettlement
agency under contract with the Government also has a connection to a particular
refugee independent of its cooperative agreement with the Government and the
sponsorship assurance process. Under those circumstances, the sufficiency of any
such connections to establish a qualifying bona fide relationship would be assessed
by officials on a case-by-case basis. The guidance at issue here merely provides that
sponsorship assurance alone is not sufficient to establish a qualifying bona fide
relationship. See Department of State, Fact Sheet, attached hereto as Ex. C.
17

other requirements for refugee admission, under Plaintiffs’ and amici’s theory,
would necessarily have a bona fide relationship. Indeed, as of June 30, 2017, 23,958
refugees in the Refugee Program were already assured by a resettlement agency. Id.
¶ 17. Not all of these individuals, however, likely would even be scheduled to enter
in the next 120 days. Id. This Court should reject a reading of the Supreme Court’s
order that renders it largely inoperative. Cf. Corley v. United States, 556 U.S. 303,
314 (2009) (“basic interpretive” principles require that “[a] statute should be
construed [to give effect] to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant” (citation omitted)).
Plaintiffs also assert that the Government has run afoul of the Supreme Court’s
order by “only permit[ing] the entrance of refugees booked for travel through July
6, 2017.” Pls.’ Mem. at 12 (citing Pls.’ Ex. B, ECF No. 294-2). Plaintiffs, however,
mischaracterize the Government’s guidance, which provides a “reminder” that
“refugees already scheduled for travel through July 6 will be permitted to travel
regardless of whether they have” a “bona fide relationship” with a person or entity
in the United States. Id., Pls.’ Ex. B. That is because refugees already scheduled
for travel on the Order’s effective date are exempt from Section 6(a)’s suspension,
and the refugees who have been scheduled for travel through July 6 would not
exceed the 50,000 person cap. Moreover, the background briefing that Plaintiffs
filed with their motion indicates that the Government has yet to “determine which
18

folks can travel after” July 6. Pls.’ Ex. D, ECF No. 294-4 at 6. Accordingly,
Plaintiffs’ assertion is unfounded, and their challenge to a decision the Government
has not yet made is unripe.5
Finally, amici express the concern that, while “the government properly
recognized that many categories of visas are categorically exempt under the
Supreme Court’s decision,” it did not issue similar guidance regarding refugee
programs. See Amicus Br. at 8. The programs that amici identify in their brief
generally are limited to refugees who have a close relationship with a person or entity
in the United States, though the scope of the programs vary and there are some
significant exceptions.6 Regardless of the definition of the program, refugees are

5

Amici—who are not even parties to this action—also seek to have this Court
“clarify that all components of the [Refugee Program] must remain in operation.”
Amicus Br. at 11. This proposed relief is based on nothing more than amici’s
concern that the Government “has suggested that it plans to suspend certain
components of the refugee pipeline.” Id. Amici fail to identify anything specific to
justify this concern, other than the Government’s assurance that refugees scheduled
for travel through July 6 will be permitted to travel to the United States. See id.;
Hetfield Decl. ¶ 25. The vague relief that amici seek presents issues that are not yet
ripe and would have this Court enter a sweeping order that conflicts with the
Supreme Court’s opinion allowing for the implementation of Sections 6(a) and 6(b).
6
For example, amici assert that the Central American Minors Program is limited to
petitioners who “have a parent who is lawfully present in the United States.” Amicus
Br. at 10. That is not entirely correct: For example, the program also allows
caregivers who are related to the parent or child to apply to the program. See
https://www.state.gov/j/prm/ra/cam/index.htm. That caregiver, however, does not
necessarily have a sufficiently close relationship to a U.S.-based parent to qualify as
a “close family member.” See Part I, supra.
19

not subject to Sections 6(a) or 6(b) of the Executive Order so long as they have a
bona fide relationship with a person or entity in the United States who meets the
Government’s definition of a close family member. See Slip Op. at 13.
Nonetheless, and in the interests of clarity, the Government has now provided
further information on the application of the Executive Order to the refugee
programs amici has identified. See Dep’t of Homeland Sec., Frequently Asked
Questions on Protecting the Nation from Foreign Terrorist Entry into the United
States (June 29, 2017) at 18-19, Question 36, attached hereto as Ex. D.
B.

Amici IRAP’s Claim That Representational Activity Creates a
Bona Fide Relationship Between an Organization and a Refugee
is Not Ripe.

Amici IRAP is not a refugee resettlement agency. Instead, IRAP states that it
“provides direct legal services to refugees” located abroad. Amicus Br. at 4. As
such, IRAP argues that its client relationships create bona fide relationships with
refugees and, on that basis, asks the Court to clarify that the Government cannot
apply the Executive Order to “any clients of IRAP or any other U.S.-based provider
of legal services to refugees.” Id. at 7.
IRAP’s claims are not ripe. To make its argument, IRAP relies on guidance
that had previously stated that representational activity in and of itself is not
sufficient to establish a qualifying bona fide relationship. As amici correctly note,
however, that particular guidance was removed and, while there is guidance
20

regarding resettlement agencies, see Ex. C, there currently is no applicable guidance
regarding the treatment of legal services providers. That is because the nature of
such representational services could vary significantly; thus, the adequacy of IRAP’s
(or any similar organization’s) connection to any particular refugee will be evaluated
on a case-by-case basis to determine whether a qualifying bona fide relationship
exists. This is, of course, both consistent with the Supreme Court’s stay and
appropriate in light of the various types of relationships that might exist between
organizations and refugees. There is therefore nothing to clarify and, thus, no basis
for an order that would sweep-in any relationship that a refugee might have with a
U.S.-based legal services provider, regardless of the nature or scope of that
individualized relationship.
III.

The Government Is Properly Implementing the Supreme Court’s
“Credible Claim” Standard.
Plaintiffs also argue that the Government is improperly implementing the

Supreme Court’s “credible claim” standard, and therefore request that this Court
“clarify the standard that should be applied by the Government in deciding whether
a foreign national is covered by the injunction.” Pls.’ Mem. at 13. Plaintiffs’
argument, however, misconstrues the Government’s guidance.
As an initial matter, there is no need for this Court to “clarify” the appropriate
standard. The Government fully agrees that, as the Supreme Court made clear, the
21

Order “may not be enforced against foreign nationals who have a credible claim of
a bona fide relationship with a person or entity in the United States.” Slip Op. at 12.
The Government is implementing that “credible claim” standard, fully consistent
with the Supreme Court’s opinion.
Indeed, this “credible claim” standard is reflected in the Government’s official
public guidance documents. See, e.g., Ex. A (State Department Guidance at 1) (“The
Supreme Court’s order specified that the suspension of entry provisions in section
2(c) of Executive Order 13780 may not be enforced against foreign nationals who
have a credible claim of a bona fide relationship with a person or entity in the United
States.” (emphases added)); see also Ex. D at 14-15, Question 29 (“A refugee will
be considered to have a credible claim to a bona fide relationship with a person in
the United States upon presentation of sufficient documentation or other verifiable
information supporting that claim.” (emphasis added)).
Rather than identifying problems in these official guidance documents,
Plaintiffs contest the Government’s implementation of the “credible claim” standard
based on an internal State Department cable.

Plaintiffs believe this cable

demonstrates the Government’s non-compliance with the “credible claim” standard
because it instructs “consular officers to ‘determine’ whether a bona fide relationship
exists and to deny visas if the answer is ‘unclear.’” Pls.’ Mem. at 13 (citing Pls.’ Ex.
A at 5, ¶ 13, ECF No. 294-1).
22

However, as Plaintiffs themselves acknowledge, the cable on which they rely
likewise embraces the Supreme Court’s “credible claim” standard. See id. Plaintiffs
thus attempt to create an inconsistency within the document, by asserting that the
use of the word “determination” improperly supplants the “credible claim” standard
and imposes “a presumption against the applicant[.]” Id. But the document’s use of
the word “determination” does not conflict with the “credible claim” standard
announced by the Supreme Court and reiterated in the cable: Pursuant to the
guidance, the “determination” that the consular officer makes is whether a credible
claim exists. Indeed, the cable makes this point clear in an earlier statement:
“[A]pplicants who are nationals of the affected countries who are determined to be
otherwise eligible for visas and to have a credible claim of a bona fide relationship
with a person or entity in the United States are exempt from the suspension of entry
in the United States as described in section 2(c) of the E.O.” Pls.’ Mem., Ex. A at 1,
¶ 3 (emphasis added). Thus, there is no basis for Plaintiffs’ contention that the
Government appears to apply a presumption against the applicant that is not
consistent with the “credible claim” standard. Further, the guidance is consistent
with the INA, which places the burden on a visa applicant to “establish that he is
eligible to receive such visa,” 8 U.S.C. § 1361, and generally presumes that a
nonimmigrant visa applicant is an intending immigrant “until he establishes to the
satisfaction of the consular officer . . . that he is entitled to a nonimmigrant visa
23

status.” 8 U.S.C. § 1184(b). No visa can be issued to an applicant who fails to
overcome that burden. 22 C.F.R. § 41.11(b).
Finally, Plaintiffs complain that the State Department cable instructs consular
officers to refuse visas if they are unsure whether an exemption from the Executive
Order applies. But Plaintiffs fail to provide the requisite context for the guidance.
The full sentence challenged by Plaintiffs states: “If consular officers are unclear if
an applicant qualifies for an exemption, the cases should be refused under INA
221(g) and the consular officer should request an advisory opinion from VO/L/A
following current guidance in 9 FAM 304.3-1.” Pls.’ Mem., Ex. A at 5, ¶ 13. In
other words, if a consular officer is unclear about whether an individual is exempt
from the Executive Order as modified by the Supreme Court’s decision, then the
proper course is for the consular officer to request additional guidance from other
State Department officials.
There is nothing improper about that instruction. Consular officers are
required to either issue or refuse visas once the visa applications are complete, e.g.,
once the visa interview is complete. See 22 C.F.R. §§ 41.101-41.121 (nonimmigrant
visas), 42.61-42.81 (immigrant visas). The Supreme Court’s decision, in Plaintiffs’
view, would therefore require a consular officer to issue a visa to an individual even
when the officer is uncertain about the individual’s entitlement to such a visa. That
plainly cannot be correct. Therefore, the only appropriate action a consular official
24

unsure about the application of the Executive Order can take is to refuse the visa and
obtain further guidance. And although the guidance instructs consular officers to
refuse the visa for administrative processing pursuant to section 221(g) of the INA,
see 8 U.S.C. § 1201(g), if further guidance clarifies that the individual is entitled to
a visa, then the consular officer will “overcome” the prior refusal and issue the visa.
See 9 Foreign Affairs Manual 306.2-2(A), When a Refusal May Be Overcome,
§ (a)(2)(a) (“INA 221(g) refusals entered for administrative processing may be
overcome once you can determine administrative processing is completed and you
receive any required advisory opinion or other needed information.”).
In short, the Government is properly implementing the Supreme Court’s
“credible claim” standard, consistent with its official guidance unchallenged by
Plaintiffs here. Plaintiffs’ request for “clarification” as to the appropriate standard
is therefore unnecessary and should be denied.
CONCLUSION
The Court should deny Plaintiffs’ Emergency Motion to Clarify the Scope of
the Preliminary Injunction. Should the Court grant any relief to Plaintiffs, however,
the Government respectfully requests that the Court stay that relief pending the filing
by the Government and disposition of an immediate request to the Supreme Court
for clarification of its ruling.

25

Dated: July 3, 2017

Respectfully submitted,
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Brad P. Rosenberg
BRAD P. ROSENBERG (DC Bar. No. 467513)
MICHELLE R. BENNETT (CO Bar. No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

26