State of Hawaii v. Trump

Filing 321

MEMORANDUM in Support re #293 Emergency MOTION to Clarify Scope of Preliminary Injunction re #291 Preliminary Injunction, filed by State of New York. (Attachments: #1 Certificate of Service)(Underwood, Barbara)

ADAMS MIYASHIRO KREK
A Limited Liability Law Partnership

ERIC T. SCHNEIDERMAN
Attorney General of the State of New York

DUANE R. MIYASHIRO 6513
900 Fort Street Mall, Suite 1700
Honolulu, HI 96813
Telephone: [phone]
Facsimile: 808.664-8626
[e-mail]

BARBARA D. UNDERWOOD*
Solicitor General
*
Admitted Pro hac vice
120 Broadway
New York, NY 10271
Telephone: [phone]
Facsimile: 212.416.6350
[e-mail]

Attorneys for the STATES OF NEW YORK, CALIFORNIA, CONNECTICUT,
DELAWARE, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS,
NEW MEXICO, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, and
WASHINGTON, and the DISTRICT OF COLUMBIA
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,

Civil No. 1:17-cv-00050
(DKW/KSC)

v.
BRIEF AMICUS CURIAE OF
THE STATE OF NEW YORK, et
al.; CERTIFICATE OF
COMPLIANCE; CERTIFICATE
OF SERVICE

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; Related Documents: Dkt. No. 293
REX TILLERSON, in his official capacity
as Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,

Civil No. 1:17-cv-00050
(DKW/KSC)

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.

BRIEF AMICI CURIAE for the STATES OF NEW YORK,
CALIFORNIA, CONNECTICUT, DELAWARE, ILLINOIS,
IOWA, MAINE, MARYLAND, MASSACHUSETTS,
NEW MEXICO, OREGON, RHODE ISLAND, VERMONT,
VIRGINIA, and WASHINGTON, and the DISTRICT OF COLUMBIA
IN SUPPORT OF PLAINTIFFS

INTRODUCTION AND INTERESTS OF THE AMICI
This Court has enjoined the enforcement of certain provisions of Executive
Order No. 13,780, which imposed a 90-day ban on the entry to the United States of
nationals from six overwhelmingly Muslim countries as well as suspended the U.S.
Refugee Admissions Program and lowered its refugee cap. 1 While the Supreme
Court of the United States modified that injunction, the Court preserved the
injunction with respect to foreign nationals who have a “bona fide relationship with
a person or entity in the United States.” Trump v. Int’l Refugee Assistance Project,
___ S.Ct. ___, 2017 WL 2722580, at *5 (June 26, 2017). The Court explained that
such a relationship can be either “a close familial relationship” with “a person” in
the United States, or a “formal, documented” relationship with an entity or
organization that was “formed in the ordinary course.” Id. at *7.
In conflict with the Supreme Court’s directive, the defendants 2 have issued
guidance stating that the federal government intends to enforce the enjoined
provisions of the Executive Order against certain close family members of persons

1

Executive Order No. 13,780, §§ 2(c), 6(a)-(b) (Mar. 6, 2017), 82 Fed. Reg.
13,209 (Mar. 9, 2017) (“EO-2”).
2

The defendants in this action are: Donald J. Trump, as President of the
United States; the United States Department of Homeland Security; John F. Kelly,
as Secretary of Homeland Security; the United States Department of State; Rex
Tillerson, as the Secretary of State; and the United States. This brief refers to them
collectively as “defendants” or “the federal government.”

in the United States—including grandparents, grandchildren, aunts, uncles, nieces,
nephews, and cousins (ECF No. 294-1, at 4 ¶ 11). That exclusion conflicts with the
language and purpose of the injunction left in place by the Supreme Court.
The States of New York, California, Connecticut, Delaware, Illinois, Iowa,
Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont,
Virginia, and Washington, and the District of Columbia submit this brief as amici
curiae to urge this Court to grant the motion for clarification filed by plaintiffs the
State of Hawaii and Ismail Elshikh, and to ensure that the modified injunction is
construed in a manner consistent with its purpose. This brief does not inject new
arguments into the case, but rather supplements the brief of Hawaii by providing an
additional perspective based on the experience of fifteen additional sovereign states
and the District of Columbia, all of which have an urgent interest in the clarification
of this nationwide injunction. Amici States have brought challenges to the Executive
Order and its predecessor in other courts, similar to the challenge brought by Hawaii
and Mr. Elshikh here, on the ground that the Order violates the Establishment Clause
of the United States Constitution and various other constitutional and statutory
provisions.3 We have also filed briefs amicus curiae supporting Hawaii and the other

3

Cases challenging EO-2: See Second Am. Compl., Washington v. Trump,
No. 17-cv-00141 (W.D. Wash. Mar. 16, 2017) (challenge to EO-2 by Washington,
2

plaintiffs in this case and in the companion case from the Fourth Circuit, including
a brief opposing any stay of the preliminary injunctions issued in these two cases.4
Amici have a strong interest in plaintiffs’ challenge to this Executive Order
because many of its provisions have threatened—indeed, have already caused—
substantial harm to our residents, communities, hospitals, universities, and
businesses while courts continue to adjudicate the Order’s lawfulness. The
preliminary injunction entered by this Court, along with the injunction entered in the
Fourth Circuit case, substantially mitigated the harm threatened by the Order, and
the Supreme Court’s decision to leave important aspects of the injunction in place
continues to provide critical protection to the state interests endangered by the Order.
Accordingly, the amici States have a strong interest in ensuring that the protection

California, Oregon, New York, Maryland, and Massachusetts, stayed pending appeal
in Hawaii v. Trump), ECF No. 152.
Cases challenging EO-1: See Washington v. Trump, No. 17-cv-141, 2017 WL
462040, at *2-*3 (W.D. Wash. Feb. 3, 2017) (enjoining travel and refugee bans in
EO-1), stay pending appeal denied, 847 F.3d 1151 (9th Cir. 2017); Mass. & N.Y.
Amicus Br. (15 States and D.C.), Washington v. Trump, No. 17-141 (9th Cir. 2017),
ECF No. 58-2; Aziz v. Trump, No. 17-cv-116, 2017 WL 580855, at *11 (E.D. Va.
Feb. 13, 2017) (enjoining travel ban in EO-1 as applied to Virginia).
4

Ill. Amicus Br. (16 States and D.C.), Hawaii v. Trump, No. 17-15589 (9th
Cir. Apr. 20, 2017), ECF No. 125; Va. & Md. Amicus Br. (16 States and D.C.), IRAP
v. Trump, No. 17-1351 (4th Cir. Apr. 19, 2017), ECF No. 153; Va. Amicus Br. (16
States and D.C.), Trump v. IRAP, Nos. 16-A1190, 16A-1191 (Sup. Ct. June 21,
2017); N.Y. Amicus Br. (16 States and D.C.), Trump v. IRAP, Nos. 16-A1190, 16A1191 (Sup. Ct. June 21, 2017).
3

provided by the injunction is not diminished by an interpretation that is inconsistent
with its meaning and purpose.
The amici States are particularly concerned that the federal government has
construed the Supreme Court’s phrase “bona fide relationship with a person or entity
in the United States” in a manner so narrow that it will not adequately protect the
ability of state universities, hospitals, and businesses to recruit and retain students
and staff from the affected countries, or otherwise protect the rights of persons in the
United States. Nothing in the Supreme Court’s order categorically limited the types
of “close familial relationship[s]” that would be sufficient for a foreign national to
state a credible claim of a “bona fide relationship with a person or entity in the United
States.” Trump v. IRAP, 2017 WL 2722580, at *6-*7. Yet the federal government
has nonetheless drawn such absolute categorical lines—arbitrarily determining that
many close family relationships do not qualify for the protection of this Court’s
injunction, including grandparents, grandchildren, aunts, uncles, nieces, nephews,
and cousins, among others (ECF No. 294-1, at 4, ¶ 11).
When foreign nationals decide whether to accept offers of employment or
offers of admission to an educational institution in the United States, they take into
account whether their close family members will be able to visit them. And when
such persons have come to work or study in the United States, their fundamental
familial relationships are profoundly burdened if close family members are
4

prevented from visiting them. The artificially narrow line drawn by the federal
government will thus also likely impair the ability of institutions in the amici States
not only to recruit but also to retain individuals from the affected countries who do
not wish to endure the hardship of disruption and separation from family members
with whom they have bona fide “close familial relationship[s].” 5 Trump v. IRAP,
2017 WL 2722580, at *7.
ARGUMENT
THE FEDERAL GOVERNMENT’S NARROW INTERPRETATION OF
“CLOSE FAMILIAL RELATIONSHIP” IMPROPERLY AND ARBITRARILY
EXCLUDES FROM THE PROTECTION OF THE INJUNCTION PERSONS
WHO FALL SQUARELY WITHIN ITS MEANING AND PURPOSE
The federal government has stated that it intends to recognize as bona fide
“close familial relationship[s]” protected by the injunction only a specified list of
family relationships, not including grandparents, grandchildren, aunts, uncles,
nieces, nephews, cousins, and siblings-in-law. As this Court should clarify, nothing
in the language or rationale of the Supreme Court’s June 2017 order supports such a
restrictive definition of “close familial relationship.”

5

Amici States also share the concerns raised by plaintiffs and the other amici
about other aspects of the federal government’s guidance. See Brief of Hawaii et al.,
ECF No. 293-1, at 13-15; Brief of International Refugee Assistance Project et al., as
Amici Curiae, ECF No. 297-1, at 8-14.
5

First, the federal government’s interpretation is not supported by the language
used by the Supreme Court in leaving part of the injunction in place. The Supreme
Court, in staying the underlying injunction in part, broadly held that sections 2(c),
6(a), and 6(b) of EO-2 “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.” Trump v. IRAP, 2017 WL 2722580, at *6. The Court made clear that the
exclusionary provisions of these sections can be enforced only against those “who
have no connection” or “no tie” to the United States. Id.
With respect to foreign nationals claiming a bona fide relationship with a
person in the United States, the Supreme Court held that “a close familial
relationship is required,” but did not expressly limit what constitutes such a
relationship or enumerate an exhaustive list of relationship categories. Id. at *7.
Instead, the Supreme Court provided two examples of the “sort of relationship” that
continues to be protected under this Court’s injunction—being a wife or a motherin-law of a person in the United States. Id. The Court’s recognition that a person’s
relationship to his or her mother-in-law “clearly” presents a close enough
relationship to qualify for protection, id., necessarily implies that the Court viewed
the injunction as encompassing a broad category of relationships beyond those found
within a traditional nuclear family.

6

The federal government, however, has sought to narrowly define “close
family” as only “a parent (including parent-in-law), spouse, child, adult son or
daughter, son-in-law, daughter-in-law, sibling, whether whole or half,” including
“step relationships.” (ECF No. 294-1, at 4, ¶ 11.) This definition expressly excludes
“grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-inlaw and sisters-in-law,” as well as “other ‘extended’ family members.” (Id.; see also
ECF No. 294-2; ECF No. 264-3, at 2-3.) Defendants do not identify any language in
the Supreme Court’s order that supports such a limited and exclusive definition. Nor
is there any support for their suggestion (ECF No. 301, at 11-12) that the Court
considered “mother-in-law” status to be qualifying in this case only for the reason
that plaintiff Dr. Elshikh’s mother-in-law is also the mother of his wife—a fact never
mentioned by the Court.
The federal government’s cramped view of what counts as a “close familial
relationship” is contradicted both by social science research and by common
experience. In particular, the relationship between grandparents and grandchildren
is widely recognized as close to—and sometimes a substitute for—the relationship
between parents and children. 6 Other excluded family relationships, including those

6

Indeed, grandparents are frequently responsible for caring for and nurturing
their grandchildren. See, e.g., Teresa Wiltz, Why More Grandparents Are Raising
Children, The Pew Charitable Trusts (Nov. 2, 2016) (stating that in 2015,
7

with uncles and aunts, can also be close and significant ones.7 There is thus simply
no basis for categorically excluding these relationships from the class of close family
relationships that qualify for protection under the modified injunction.
Contrary to defendants’ arguments (ECF No. 301, at 6, 11-17), the specific
and limited definitions of family created by the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1101 et seq., to determine eligibility for long-term immigrant
visas, cannot be imported into this different context to justify the denial of nonimmigrant visas or short-term entry to other close family members. For example,

approximately 2.9 million children in this country were living with grandparents
who were responsible for their care and discussing reasons for this increase), at
http://tinyurl.com/WiltzPewCharitableTrusts; Xiaolin Xie & Yan Xia,
Grandparenting in Chinese Immigrant Families, 47 Marriage & Family Rev. 383
(2011) (studying cultural trend in Chinese immigrant families of bringing
grandparents to United States, often on temporary visas only, to be primary care
givers for grandchildren while parents worked outside the home), at
http://tinyurl.com/Xia-XieMarriageFamilyRev.
7

See, e.g., Native American Training Inst., Kinship Relationships and
Expectations (describing relationship between an aunt and niece as akin to that of a
mother and child; relationship between an uncle and nephew as “similar to the
relationship between a young boy and his father”; and that a brother-in-law may
appropriately
“help
a
brother
raise
male
children”),
at
http://tinyurl.com/NativeAmTrainingInst; Margaret Slade, Relationships: The Role
of Uncles and Aunts, New York Times (April 9, 1984) (noting view of sociology
professor that “[a]mong some ethnic groups, aunts and uncles serve as a network
that can absorb children from another household when needed, as in a divorce or
after a parent’s death”), at http://tinyurl.com/Slade-NYTimes.

8

although the INA’s definition of “family” excludes mothers-in-law, see, e.g., id.
§§ 1151(b)(2)(A), 1153(a), the Supreme Court expressly held that this relationship
is within the ambit of the injunction’s protections. Trump v. IRAP, 2017 WL
2722580, at *7. It is hardly surprising that the relationships that warrant the
protection of this preliminary injunction are more extensive than the relationships
that qualify for eligibility to permanently reside in the United States under the INA.
The definition of family for purposes of the protection of this Court’s injunction
reflects an equitable determination that, at least as an interim matter, it would be
unjustly harmful to persons in the United States to keep them separated from close
family members when there are serious questions about the validity of EO-2. By
contrast, the relevant INA provisions reflect a Congressional policy determination,
not questioned by any court, about how far to extend the opportunity for permanent
immigration with a path to American citizenship. The federal government is simply
wrong to rely on the INA’s narrow definition of close family as the full measure of
the family relationships protected by the interim equitable relief at issue here.
Second, the federal government’s interpretation of the injunction is
inconsistent with the rationale the Supreme Court gave for distinguishing between
foreign nationals who have a bona fide “connection” or “tie” to someone in the
United States and those who lack such a relationship. As the Court reasoned, denying
entry to a foreign national with no close ties to the United States “does not burden
9

any American party by reason of that party’s relationship with the foreign national,”
whereas the exclusion of a close family member of a person in the United States
results in an “obvious hardship” to that person.8 Trump v. IRAP, 2017 WL 2722580,
at *6. The Court applied the same analysis to the suspension of refugee admissions
under §§ 6(a) and (b) of EO-2, and emphasized that it was “not disturb[ing] the
injunction” where “[a]n American individual . . . 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.” Id. at *8.
The federal government’s proposed approach will prevent many persons in
the United States from reuniting with family members who are as close, or closer, to
them than persons on the federal government’s list of family members who continue
to be protected by the injunction. Under the Supreme Court’s cases, such a
deprivation amounts to a constitutionally cognizable hardship. The Supreme Court
has long recognized that the “protection of family rights” are not “cut[ ] off” at the
“boundary of the nuclear family,” and that this country’s “deeply rooted” history and
tradition “support[ ] a larger conception of the family.” Moore v. City of East

8

The Supreme Court’s use of the term “a person . . . in the United States,”
2017 WL 2722580, at *6 (emphasis added), to serve as the reference point for
evaluating the relevant hardship further demonstrates that the Court did not intend
the scope of its injunction to be governed by the provisions of the INA, which
authorizes only citizens and legal permanent residents, and not all persons in the
United States, to sponsor family members for permanent immigration.
10

Cleveland, Ohio, 431 U.S. 494, 502-05 (1977) (invalidating local ordinance making
it a crime for a grandmother to live with her grandchild); see also id. at 504 (“The
tradition of uncles, aunts, cousins, and especially grandparents sharing a household
with parents and children has roots equally venerable and equally deserving of
constitutional recognition.”).
The federal government’s proposed approach thus continues to jeopardize the
amici States’ public and quasi-sovereign interests by preventing numerous persons
in our States from receiving visits from family members with whom they have close
and bona fide relationships. An ailing grandmother could not receive end-of-life care
from her foreign granddaughter. A niece whose foreign aunt was like a mother to
her could not bring that aunt to witness and celebrate her wedding. And an orphaned
child would not be permitted to receive a visit from the uncle who took care of her
financial and emotional needs after her father’s untimely death. See Moore, 431 U.S.
at 505 (“Especially in times of adversity, such as the death of a spouse or economic
need, the broader family has tended to come together for mutual sustenance and to
maintain or rebuild a secure home life.”). Such exclusions thus hinder the amici
States’ ability to protect all of their residents’ fundamental familial relationships—
nuclear and extended—from the reach of the unconstitutional Executive Order
underlying this lawsuit. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 607-08 (1982) (discussing a State’s interests in ensuring that its
11

residents are “not excluded from benefits that are to flow from participation in the
federal system” and in “securing observance of the terms under which it participates
in” that system).
In addition, the federal government’s impermissible exclusions will also result
in continuing concrete and irreparable harms to amici States’ economic and
proprietary interests. The specter of unlawful exclusions will also create barriers to
attracting and retaining foreign students and employees at our universities, hospitals,
and businesses. Many such persons may be unwilling to accept offers to work and
study in our States in light of the federal government’s stated intention to ban visits
from their grandparents, grandchildren, or other close relatives. Moreover, amici
States will lose significant sources of taxes and other revenues that would otherwise
be collected from improperly excluded foreign nationals visiting our States. These
are some of the very interests that the injunction was originally designed to protect
and the very harms the Supreme Court carefully sought to avoid when leaving the
injunction in place as modified. See Ill. Amicus Br. (16 States and D.C.) at 5-20,
Hawaii v. Trump, No. 17-15589 (9th Cir. Apr. 20, 2017), ECF No. 125; Va. Amicus
Br. (16 States and D.C.) at 4-14, Trump v. IRAP, Nos. 16-A1190, 16A-1191 (Sup.
Ct. June 21, 2017).
In sum, the federal government’s restrictive definition of close familial
relationships will result in the improper exclusion of numerous foreign nationals
12

who have the requisite bona fide connection to a person in the United States, despite
the Supreme Court’s unequivocal holding that this Court’s protections for such
persons remain in full force. This Court should clarify that such a restricted
definition is impermissible.
CONCLUSION
This Court should grant plaintiffs’ motion to clarify the scope of the
preliminary injunction.
Dated:

New York, New York
July 6, 2017
Respectfully submitted,

ADAMS MIYASHIRO KREK
By: . /s/ Barbara D. Underwood
.
A Limited Liability Law Partnership
BARBARA D. UNDERWOOD*
Solicitor General
*
DUANE R. MIYASHIRO
Admitted Pro Hac Vice
ANISHA DASGUPTA
Deputy Solicitor General
ZAINAB A. CHAUDHRY
Assistant Solicitor General
of Counsel

Attorneys for Amicus Curiae States and the District of Columbia Listed on Next Page

13

XAVIER BECERRA
Attorney General
State of California
1300 I Street
Sacramento, CA 95814

JANET T. MILLS
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333

PETER F. KILMARTIN
Attorney General
State of Rhode Island
150 S. Main Street
Providence, RI 02903

GEORGE JEPSEN
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106

BRIAN E. FROSH
Attorney General
State of Maryland
200 Saint Paul Place
Baltimore, MD 21202

THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
109 State Street
Montpelier, VT 05609

MATTHEW P. DENN
Attorney General
State of Delaware
Carvel State Bldg., 6th Fl.
820 N. French Street
Wilmington, DE 19801

MAURA HEALEY
Attorney General
Commonwealth of
Massachusetts
One Ashburton Place
Boston, MA 02108

MARK R. HERRING
Attorney General
Commonwealth of Virginia
202 North Ninth Street
Richmond, VA 23219

LISA MADIGAN
Attorney General
State of Illinois
100 W. Randolph Street,
12th Fl.
Chicago, IL 60601

HECTOR BALDERAS
Attorney General
State of New Mexico
408 Galisteo Street
Santa Fe, NM 87501

BOB FERGUSON
Attorney General
State of Washington
800 Fifth Avenue, Ste. 2000
Seattle, WA 98104

THOMAS J. MILLER
Attorney General
State of Iowa
1305 E. Walnut Street
Des Moines, IA 50319

ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street, N.E.
Salem, OR 97301

KARL A. RACINE
Attorney General
District of Columbia
One Judiciary Square
441 4th Street, N.W.
Washington, DC 20001

14

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,

Civil No. 1:17-cv-00050
(DKW/KSC)

v.
CERTIFICATE OF COMPLIANCE
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.

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.5 of the Local Rules for the District of Hawai‘i, the State of
New York states that this Brief Amici Curiae is double-spaced, is in Times New
Roman 14 point font, and contains 3,102 words (according to the Word Count
function of Microsoft Word), exclusive of captions and signature lines.