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)

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Release Date: June 29, 2017

Q1. Who is subject to the
suspension of entry under
the Executive Order?
Per the Executive Order and the June 14 Presidential
Memorandum, the temporary suspension of entry
applies, with limited exceptions, only to foreign
nationals from Sudan, Syria, Iran, Libya, Somalia, and
Yemen, who are outside the United States as of June 26,

Exhibit D
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2017, who did not have a valid visa at 5 p.m. EST on
January 27, 2017, and who do not have a valid visa as on
8:00 p.m. EDT on June 29, 2017. Further, the Executive
Order does not bar entry for individuals who are
excluded from the suspension provision under the terms
of the Executive Order, who obtain a waiver from the
Department of State or U.S. Customs and Border
Protection, or who demonstrate to the Department of
State that they have a bona fide relationship with a
person or entity in the United States pursuant to the
Supreme Court’s Order of June 26, 2017.

Q2. How will this impact
commercial air carriers?
DHS anticipates no operational impact to commercial
carriers. Passengers are still required to present a valid
visa or other entry document to travel to the Unites
States. Passengers who present a valid visa or other
entry document are presumed to be either outside the
scope of the Executive Order, to have received a waiver
from the travel restrictions, or to be covered by court
injunctions. Passengers in possession of a valid visa or
other entry document, irrespective of the date of
issuance, should be boarded pursuant to the same
operational procedures which were in place prior to the
Supreme Court decision.

Q3. What about dual
citizens?
Travelers will be processed according to the travel
document they present. For example, if the traveler

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presents a Canadian passport, the Canadian passport
will be used to process that traveler for entry.

Q4. What about refugees
who are considered to be “in
transit?”
The Executive Order does not apply to refugees who
were formally scheduled for transit prior to 8:00 p.m.
EDT on Thursday, June 29, 2017. For refugees who are
considered to be “in transit,” for whom application of
the Executive Order remains enjoined, or for whom a
waiver has been granted, the Secretaries of State and
Homeland Security have coordinated on the travel of
these individuals.

Q5. I am a national from one
of the six affected countries
currently overseas and in
possession of a valid visa,
but I have no prior travel to
the United States. Can I
travel to the United States?
Foreign nationals from Sudan, Syria, Iran, Libya,
Somalia, and Yemen who have valid visas will not be
affected by this Executive Order. No visas will be revoked
based on the Executive Order. But visas may be revoked,

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or admission may be denied, based on legal
requirements independent of the Executive Order.

Q6. I am presently in the
United States in possession
of a valid single entry visa
but I am a national of one of
the six impacted countries.
Can I travel abroad and
return to the United States?
Regardless of the Executive Order, you may not travel
abroad and return to the United States on the same visa
unless your visa is valid for multiple entries into the
United States. While the Executive Order does not apply
to those within the United States and your travel abroad
is not limited, a valid visa or other document permitting
you to travel to and seek admission to the United States
is still required for any subsequent entry to the United
States. If you were present in the United States on June
26, 2017, the Executive Order will not apply to you when
you apply for a subsequent visa. Please contact the
Department of State for additional information
pertaining to applying for a new visa.

Q7. I am presently in the
United States in possession
of a valid multiple entry visa

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but am a national of one of
the six affected countries,
can I travel abroad and
return to the United States?
Yes. Individuals within the United States with valid
multiple entry visas on June 26, 2017 are eligible for
travel to and from the United States, provided the visa
remains valid and the traveler is otherwise admissible.
All foreign nationals traveling with a visa must satisfy all
admissibility requirements for entry. Additional
information on applying for admission to the United
States is available at CBP.gov.

Q8. I am from one of the six
countries, currently in the
United States in possession
of a valid visa and have
planned overseas travel. My
visa will expire while I am
overseas, can I return to the
United States?
Travelers must have a valid visa to travel to the United
States, regardless of the Executive Order. Travelers who
do not have a valid visa due to its expiration while
abroad must obtain a new valid visa prior to returning to

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the United States. If you were present in the United
States on June 26, 2017, the Executive Order will not
apply to you when you apply for a subsequent visa.
Please contact the Department of State for additional
information pertaining to applying for a new visa.

Q9. Will the Department of
Homeland Security (DHS)
and the Department of State
(DOS) be revoking the visas
of persons ineligible to
travel under the revised
Executive Order?
No. Visas will not be revoked based on the Executive
Order. Visas may be revoked based on legal
requirements independent of the Executive Order. The
Department of State has broad authority under Section
221(i) of the Immigration and Nationality Act to revoke
visas.

Q10. What is the process for
overseas travelers affected
by the Executive Order to
request a waiver?
Waivers for overseas travelers who are affected by the
EO will, if appropriate, be adjudicated by the

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Department of State. Please contact the Department of
State for additional information.

Q11. How are returning
refugees and asylees
affected by the Executive
Order?
Returning refugees and asylees, i.e., individuals who
have already been granted asylum or refugee status in
the United States, are explicitly excluded from this
Executive Order. As such, they may continue to travel
abroad and return to the United States consistent with
existing requirements.

Q12. Are first-time arrival
refugees with valid travel
documents allowed to travel
to the United States?
Yes, but only refugees, regardless of nationality, whose
travel was already formally scheduled by the
Department of State, or for whom the Department of
State has determined that a waiver is warranted under
the Executive Order, or for whom the Executive Order
remains enjoined pursuant to the Supreme Court’s
order, are permitted to travel to the United States and
seek admission. The Department of State will have
additional information.

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Q13. Will unaccompanied
minors within the scope of
the Executive Order be
denied boarding and or
denied entry into the United
States?
The Executive Order applies to those who do not have
valid visas and are not otherwise exempt. Any
individuals, including children, who seek entry to the
United States must have a valid visa (or other approved
travel document) before travel to the United States. The
Department of State will determine whether the
Executive Order is enjoined with respect to a particular
individual and, if appropriate, may issue a waiver on a
case-by-case basis when in the national interest of the
United States notwithstanding the suspension of entry
under the Executive Order.

Q14. Is DHS complying with
all court orders?
DHS is complying, and will continue to comply, with all
court orders in effect.

Q15. When will the Executive
Order be implemented?
The Executive Order indicated an effective date of 12:01
A.M., Eastern Daylight Time, on March 16, 2017. Before

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the Order took effect, however, the travel restrictions in
Sections 2 and 6 were enjoined by Federal courts in
Hawaii and Maryland. Those injunctions were partially
stayed by the Supreme Court. Accordingly, pursuant to
the June 14, 2017 Presidential Memorandum, agencies
will begin to implement the travel restrictions found in
the Executive Order at 8:00 p.m. EDT on June 29, 2017.

Q16. Will the Executive
Order impact Trusted
Traveler Program
membership?
No. Currently, CBP does not have reciprocal agreements
for a Trusted Traveler Program with any of the countries
designated in the Executive Order. Additionally, citizens
of one of the designated countries who hold lawful
permanent resident status and who are Trusted Traveler
Program members will not have their membership
revoked as a result of the Executive Order.

Q17. When will CBP issue
guidance to both the field
and airlines regarding the
Executive Order?
CBP will issue guidance and contact stakeholders to
ensure timely implementation consistent with the terms
of the Executive Order.

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Q18. If I receive a valid
immigrant visa from the
Department of State and I
am a first-time arrival, will I
be allowed to travel to the
U.S.?
Yes. Individuals holding valid immigrant visas do not fall
within the scope of the Executive Order. You will,
however, be subject to all laws and regulations
governing entry into the U.S.

Q19. Does this affect
travelers at all ports of
entry?
Yes, this Executive Order applies to travelers who are
applying for entry into the United States at any port of
entry—air, land, or sea. Additionally, the Executive Order
will be applied to processing travelers at preclearance
locations.

Q20. What does granting a
waiver to the Executive
Order mean? How are

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waivers applied to individual
cases?
Per the Executive Order, the Commissioner of U.S.
Customs and Border Protection, as delegated, and the
Department of State can review individual cases and
grant waivers on a case-by-case basis if a foreign
national demonstrates that his or her entry into the
United States is in the national interest, will not pose a
threat to national security, and that denying entry during
the suspension period will cause undue hardship.

Q21. Does “from one of the
six countries” mean citizen,
national, or born in?
The Executive Order applies to both nationals and
citizens of the six countries.

Q22. Will nationals of the six
countries with valid green
cards (lawful permanent
residents of the United
States) be allowed to return
to the United States?
Per the Executive Order, the suspension of entry does
not apply to lawful permanent residents of the United
States.

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Q23. Can a dual national
who holds nationality with
one of the six designated
countries traveling with a
passport from an
unrestricted country travel
to the United States?
The Executive Order exempts from the entry suspension
any dual national of one of the six countries when the
individual is traveling on a passport issued by a nondesignated country.Can a dual national who holds
nationality with one of the six designated countries and
is currently overseas, apply for an immigrant or
nonimmigrant visa to the United States?Please contact
the Department of State for information about how the
Executive Order applies to visa applicants.

Q24. Will landed immigrants
of Canada affected by the
Executive Order be eligible
for entry to the United
States?
Landed immigrants of Canada who hold passports from
one of the six countries are eligible to apply for a visa,
and coordinate a waiver, at a location within Canada.

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Q25. Has CBP issued clear
guidance to CBP officers at
ports of entry regarding the
Executive Order?
CBP has issued and will continue to issue any needed
guidance to the field with respect to this Executive
Order.

Q26. What coordination is
being done between CBP and
the carriers?
CBP has been and will remain in continuous
communication with the airlines through CBP regional
carrier liaisons. In addition, CBP will hold executive level
calls with airlines in order to provide guidance, answer
questions, and address concerns.

Q27. What additional
screening will nationals of
restricted countries (as well
as any visa applications)
undergo as a result of the
Executive Order?

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In making admission and visa eligibility determinations,
DHS and DOS will continue to apply all appropriate
security vetting procedures.

Q28. Is USCIS continuing to
interview refugee applicants
for admission?
Yes. However, USCIS officers have been instructed that
they should not approve a refugee application unless the
officer is satisfied that the applicant’s relationship
complies with the requirement to have a bona fide
relationship with a person or entity in the United States
and was not formed for the purpose of evading the
Executive Order. Alternatively and until the 50,000 ceiling
has been met, Section 6(c) permits the Secretaries of
Homeland Security and State to jointly determine that
refugee applicants can be interviewed and considered
for admission if the entry is in the national interest and
does not pose a threat to the security or welfare of the
United States.

Q29. How is USCIS
determining whether a
refugee applicant has a
relationship to a person in
the United States?
The Supreme Court explained, “For individuals, a close
familial relationship is required. . . .” A “close family”
relationship includes: a parent (including parent-in-law),

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spouse, child, adult son or daughter, fiancé(e), son-inlaw, daughter-in-law, and sibling, whether whole or half.
This includes step relationships. However, “close family”
does not include grandparents, grandchildren, aunts,
uncles, nieces, nephews, cousins, brothers-in-law and
sisters-in-law and any other “extended” family members.
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.

Q30. How is USCIS
determining whether a
refugee applicant has a
relationship to an entity in
the United States?
The Supreme Court explained, “As for entities, the
relationship must be formal, documented, and formed in
the ordinary course, rather than for the purpose of
evading [the Executive Order].” A refugee who has a
relationship with an entity in the United States that is
formal, documented, and formed in the ordinary course
will be considered to have a credible claim to a bona fide
relationship with that entity upon presentation of
sufficient documentation or other verifiable information
supporting that claim.

Q31. Are only refugees from
one of the six countries

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affected prevented from
traveling if they do not have
a bona fide relationship to a
person or entity in the
United States?
No. Under the Executive Order as limited by the Supreme
Court’s decision, any refugee, regardless of nationality, is
prevented from admission to the United States unless he
or she (1) demonstrates a bona fide relationship with a
person or entity in the United States or (2) obtains a
national interest waiver from the Department of State or
CBP.

Q32. How long will the
refugee suspension be in
place?
The Executive Order provides for a 120 day suspension of
refugee admissions.

Q33. Nearly 50,000 refugees
have already been admitted
to the United States this
fiscal year. Will refugees
with a bona fide relationship

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to a person or entity in the
United States be allowed to
be admitted even if the
50,000 ceiling has been
reached?
Yes. In its June 26, 2017 opinion, the Supreme Court
decided that the injunction with respect to Section 6(b)
was stayed in part. The 50,000 ceiling for FY 2017 cannot
be enforced against “an individual seeking admission as
a refugee who can credibly claim a bona fide relationship
with a person or entity in the United States.”

Q34. Will family members
planning to join refugees
and asylees be permitted to
travel?
Family members planning to join refugees or asylees are
only approved for travel if a bona fide relationship to a
spouse or parent in the United States exists. Therefore, if
the relationship were confirmed, the travel suspension
would not apply.

Q35. What is the status of
the provision of the
Executive Order that directs

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the Secretaries of State and
Homeland Security to review
the USRAP application and
adjudication processes to
determine what additional
procedures should be used
to ensure that individuals
seeking admission as
refugees do not pose a
threat to the security and
welfare of the United States?
This review is underway and DHS, in concert with DOS,
law enforcement agencies, and the intelligence
community are working together to identify enhanced
vetting procedures to ensure program integrity and
national security.

Q36. Can certain categories
of refugee cases be
considered to have a bona
fide relationship with a
person in the United States?

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Yes, certain categories of refugee cases require
relationships with close family members in the United
States, specifically "Priority 3" cases, Form I-730
(following-to-join) cases and Iraqi and Syrian Priority 2
cases where access is based on an approved Form I-130
(family based petition). Therefore, because the
relationship has been confirmed in order to fall within
the categories listed above, the refugee will be
determined to have a credible claim to a bona fide
relationship to a person in the United States.
Last Published Date: July 3, 2017

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