State of Hawaii v. Trump

Filing 336

MOTION for Leave to File Amici Curiae Brief Justin B. Cox appearing for Amicus Parties HIAS, International Refugee Assistance Project (Attachments: #1 Exhibit A - Proposed Brief, #2 Exhibit Declaration of Mark Hetfield, President and CEO of HIAS, Inc, #3 Exhibit Supplemental Declaration of Mark Hetfield, President and CEO of HIAS, Inc, #4 Exhibit Declaration of Rebecca Heller, Director of the International Refugee Assistance Project, #5 Exhibit Declaration of General John R. Allen, #6 Exhibit Declaration of (SEALED), #7 Exhibit Declaration of Allen R. Vaught, #8 Proposed Order, #9 Certificate of Service)(Cox, Justin) Modified by (afc) on 7/11/2017: Per direction of the Chambers of Judge Derrick K. Watson: - VIEWING RESTRICTED -

EXHIBIT C

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I

Hawaii, et al.,
Plaintiffs,

CIVIL ACTION NO. 1:17-CV-00050-DKWKSC

v.
DONALD TRUMP, et al.,
Defendants.

DECLARATION OF REBECCA HELLER,
DIRECTOR OF THE INTERNATIONAL
REFUGEE ASSISTANCE PROJECT

DECLARATION OF REBECCA HELLER
I, Rebecca Heller, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am the Director and co-founder of the International Refugee Assistance
Project (“IRAP”), a project of the Urban Justice Center, Inc. I have been with IRAP
since August 2008.
2. As IRAP’s Director, I oversee all of IRAP’s operations and activities, including
programming and development. I am in constant, regular communication with my
staff who provide legal representation to vulnerable individuals and consult with pro
bono attorneys and law students working on IRAP cases. I also represent a number of
refugee and visa cases myself, consult with numerous attorneys working on related
cases, monitor field conditions on the ground in the Middle East/North Africa Region,
liaise with the U.S. government and the United Nations around refugee and visa
processing issues, and coordinate partnerships with numerous NGOs working with
and advocating for refugees and immigrants in the U.S. and abroad.

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3. Throughout my eight and a half years working on Middle East refugee issues, I have
overseen, consulted on and/or represented thousands of cases. I also teach a seminar
on refugee law and practice at Yale Law School. Founded in 2008, IRAP’s mission is
to provide and facilitate free legal services for vulnerable populations around the
world, including refugees, who seek to escape persecution and find safety in the
United States and other Western countries. IRAP has a staff of over 25 individuals
based in offices in New York, Lebanon, and Jordan. IRAP works with 29 law school
chapters and over 75 firms to provide pro bono assistance to persecuted individuals
around the world. IRAP relies on the volunteer and pro bono assistance to meet the
needs of its client base.
4. IRAP lawyers provide legal assistance to refugees and other immigrants to the United
States throughout the resettlement process. IRAP also assists many individuals
(including refugees, asylees, Lawful Permanent Residents and U.S. Citizens) inside
the United States who need assistance filing family reunification petitions for family
members overseas. IRAP has provided legal counseling and assistance to nearly
20,000 individuals.
5. Since its inception, IRAP has helped to resettle over 3,200 individuals from 55
countries of origin, with the majority resettled to the United States.
6. IRAP’s client base includes refugees from Iraq, Afghanistan, Egypt, Eritrea, Ethiopia,
Iran, Jordan, Kuwait, Libya, Pakistan, Palestine, Somalia, Sudan, Syria, Turkey, and
Yemen. Of IRAP’s current 606 open cases, 421 families are from one of the six
countries or are refugees from other countries and targeted in the new Executive
Order.

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7. Many of IRAP's clients have been referred to the US for resettlement by UNHCR.
UNHCR only refers the most vulnerable refugees for resettlement, such as
unaccompanied minors, women-at-risk, and individuals with urgent medical or
protection concerns. Less than 1% of refugees worldwide are referred for resettlement
by UNHCR. If UNHCR refers an individual to USRAP, they are likely extremely
vulnerable and have strong, pre-vetted refugee claims. Further, once UNHCR refers a
refugee to USRAP, it precludes them from referring the refugee to another country
until the USRAP process is completed.
8. IRAP works with some of the most vulnerable individuals in the world, including
US..-affiliated refugees, LGBTI refugees, women who have survived trafficking,
sexual and gender-based violence, and children with emergency medical needs.
9. As the refugee resettlement process is quite intricate, some background on the various
programs will help explain the importance of recognizing the attorney-client
relationship between a refugee and a legal services provider as well as how many
refugees have a de facto bona fide relationship with a person or entity in the United
States.
The U.S government’s interpretation of the Supreme Court decision contradicts the basic
mechanics of the U.S. Refugee Admissions Program, as all refugees must eventually form a
direct relationship to a U.S. entity in order to be resettled to the United States.
10. Refugees are resettled to the United States through three “priority” streams, which are
different ways to access the U.S. Refugee Admissions Program (“USRAP”). Though
the names of these categories are “Priority 1,” “Priority 2,” and “Priority 3” (or P-1,
P-2, and P-3), these names do not indicate the order of priority.

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11. Priority 1 (P-1) referrals are individuals who are referred based on particular,
individual needs. These cases may be referred to the U.S. Refugee Assistance
Program (“USRAP”) by the United Nations High Commissioner for Refugees
(“UNHCR”), or, in much smaller numbers, by a U.S. Embassy or a qualified NGO.
Although not required, some refugees referred by UNHCR have close family
members in the United States, including grandparents, aunts, uncles, and cousins.
12. Refugees who access USRAP via a U.S. Embassy are often personally known to the
embassy. State Department guidance in the Foreign Affairs Manual gives examples
of these individuals such as prominent members of a political opposition or religious
minority, well-known journalists, or LGBTI individuals. Similarly, NGOs which
refer refugees to USRAP must have been trained by the Departments of State and
Homeland Security and work with the State Department’s regional refugee
coordinator to make the referral.
13. One of IRAP’s P-1 clients is a transgender Sudanese activist who fled to Egypt as a
result of severe persecution because of her LGBTI work. She became known to the
U.S. Embassy in Sudan which referred her to the State Department and she was given
access to USRAP. She has been now waiting in limbo for a USCIS interview to be
scheduled and remains in danger in Cairo where transgender individuals are routinely
harassed, assaulted, and persecuted.
By definition, refugees in the Central American Minors Program, the Lautenberg religious
minorities program, and the Direct Access Program for U.S.-affiliated Iraqis and Syrians must
have a direct relationship with a U.S. person or entity to access USRAP.

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14. Priority 2 (P-2) referrals are individuals who are eligible for resettlement based on a
State Department determination that they belong to a group of “special humanitarian
concern” to the United States. Several P-2 groups exist including Refugee Processing
for Religious Minorities in the Former Soviet Union and in Iran (known as the
Lautenberg Amendment), the Central American Minors Program, and the Direct
Access Program for U.S.-affiliated Iraqis and Syrians. All of these P-2 categories
require a direct U.S. tie in order to access the U.S. refugee resettlement program.
15. The P-2 group for religious minorities in the Former Soviet Union and in Iran
(authorized by the Lautenberg Amendment), requires a U.S.-based resettlement
agency to initiate the application for the refugee, thereby immediately establishing a
direct relationship between a U.S. entity and the refugee. Religious minorities in the
Former Soviet Union include Jews, Evangelical Christians, Ukrainian Orthodox, and
Catholics. A spouse, parent, child, sibling, or grandparent can initiate the application
through the resettlement agency by filing an Affidavit of Relationship. Those same
categories of family members are eligible to apply for refugee status. Religious
minorities in Iran include Christians, Jews, Mandeans, Baha’is, and Zorastrians, and a
U.S. relative or friend may initiate the application.
16. Another P-2 group, the Central American Minors (“CAM”) program, exists for
refugee children from El Salvador, Guatemala, and Honduras who have parents
lawfully in the United States. The program was founded to give children an
alternative to the dangerous journey that some children had attempted without
authorization. The purpose of the program is to reunite families in a safe manner. The

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program requires the minors to demonstrate a relationship to their parents via DNA
testing and filing an Affidavit of Relationship.
17. One of the larger P-2 groups is known as the Direct Access Program for U.S.affiliated Iraqis and Syrians (“DAP”). The Direct Access Program allows Iraqis and
Syrians who have a U.S. tie, either by family or employment, to come to the United
States through the refugee program.
18. In 2008, the bipartisan Refugee Crisis in Iraq Act was signed into law, allowing six
categories of Iraqis to access USRAP based on work for the US government or a USbased entity or family connections with individuals in the United States. In order to
access USRAP through employment, Iraqis must have either worked as an interpreter
for the U.S. Government or Multi-National Forces in Iraq, been employed by the U.S.
government in Iraq, been employed by a U.S. funded organization or entity, or been
employed by a U.S.-based media organization or NGO. Before being interviewed by
USCIS, the State Department must verify the employment relationship through
contracts, HR letters, badges of employment, and letters of recommendation from
U.S. supervisors.
19. Both Iraqi and Syrian nationals with an approved I-130 petition are also eligible for
the DAP. This program allows participants to obtain travel documents before their
visa priority date would otherwise become current, thereby allowing them to join
their families sooner in the United States. Both groups, in all circumstances, will
satisfy the bona fide relationship test because the program requires a direct
relationship with a U.S. entity or family member to access the program. At least
50,000 individuals are waiting for interviews in the Iraqi program; we estimate that

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60,000 total individuals may be waiting for admission under the Iraqi and Syrian
DAP.
20. Our P-2 refugee clients face extreme danger while they wait to be processed. For
example, one of our clients completed his pre-screening interview on June 12, 2017
and is awaiting his USCIS interview. As he waits, he hides in his apartment in
Baghdad, Iraq, with his wife and children. If they leave their apartment, they are in
danger of being killed by radical Shiite militia known as the Mahdi Army. The Mahdi
Army already killed one of his brothers and has tortured another because of the
family’s behalf of the U.S. government. They are intent on killing IRAP’s client as
well and is only means of true safety is resettlement to the United States.
21. Another P-2 IRAP client is a 36-year-old Syrian refugee who fled to Yemen and then
Saudi Arabia with her husband and two young children. Her sister is a U.S. Citizen,
living in the United States, who filed an I-130 petition for her to come to the United
States. The petition has been proved the client has accessed USRAP through DAP.
She cannot return to Syria, where she was persecuted for her religion. Her and her
family’s lives continue to be in grave danger in Saudi Arabia, where she lives near the
Yemeni border and is exposed to frequent rocket attacks and ongoing military
conflict.
Refugees in family reunification programs clearly demonstrate their bona fide relationship to
a U.S. person because the U.S.-based relative is required to access USRAP.
22. Priority 3 (P-3) referrals are individuals with close relatives—parents, children, and
spouses—recently admitted to the United States as a refugee or asylee and require
DNA testing to access USRAP. P-3 submissions have four procedural requirements:

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(1) affidavit of relationship (AOR); (2) minimum age; (3) five-year filing; and (4)
DNA testing. To initiate a P-3 case, a local resettlement agency must submit an
Affidavit of Relationship (“AOR”) on behalf of the P-3 applicant. In order to
complete the form, the principal relative must upload current digital photographs of
all family members, derivatives, and add-ons. Once completed, the local agency will
submit the AOR to a Refugee Processing Center, which will then refer it to USCIS
for case creation, processing, and adjudication. P-3 applications require DNA
relationship testing between the principal relative and their biological parents or
biological children. The principal relative bears the initial costs of DNA testing. We
estimate that 2,000 individuals are awaiting admission in the P-3 program.
23. Alternatively, an individual who has been granted asylum or refugee status in the
United States and who was also the principal applicant for his or her family may
petition to have his or her spouse and/or unmarried child(ren) under the age of 21
“follow-to-join” him or her in the United States. A Form I-730 Refugee/Asylee
Relative Petition must be filed for each qualifying family member within two years of
the principal applicant’s admission as a refugee or grant of asylum.
The U.S. Refugee Admissions Program requires that all refugees have a direct relationship to
a U.S. entity in order to be resettled.
24. Refugees who do not have a family member in the U.S. or a relationship with a U.S.
entity prior to their referral to USRAP, will necessarily develop a relationship with a
U.S. entity at some point in the processing. Two particular points in processing may
lead to such a relationship.

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25. First, once a refugee has completed multiple interviews assessing their eligibility for
refugee status, his or her name is submitted to any one of the nine non-profit agencies
that contract with the U.S. government to provide resettlement (specifically reception
and placement services) and integration services.

These voluntary resettlement

agencies, called “volags,” receive names of refugees cleared for travel, and then
provide “assurances,” or a guarantee that they will provide their services to that
individual when they arrive. Assurances typically happen close to the last stages of
the resettlement process, which is the arrival notice. As of June 26, 2017, there were
26,353 assured (but not arrived) individuals in the USRAP pipeline. Some, but not
all, of the services volags provide include picking refugees up at the airport,
providing them with culturally appropriate meals, securing them with long-term
housing, accessing benefits and healthcare, and providing job training.
26. These assurances constitute a direct tie to a U.S. entity. However, the government
has indicated that they will not resettle all currently assured refugees after July 6,
2017, despite their direct relationships with U.S. entities. There are assured refugees
booked for travel to the United States through July 27, 2017, and resettlement
agencies across the United States have been preparing tirelessly for their arrival.
27. Second, an individual may have legal representation from a U.S.-based organization;
IRAP is the primary organization that provides legal representation to refugees in the
USRAP.
28. Furthermore, many P-1 refugees who do have close family ties in the United States
would not qualify for resettlement under the government’s current interpretation of a
“bona fide relationship” under the Supreme Court decision.

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29. For example, a Ukranian refugee who is currently scheduled for travel to the United
States after July 6, 2017, would no longer be allowed to enter the United States
because her the closest family member she has in the United States is her
grandmother.
30. As a result of the government’s current interpretation of the Supreme Court’s
decision, many refugees—those who lack any of the family relationships that the
government currently recognizes—would have their applications delayed by months
or years. These long delays could result from the 120-ban because security and
medical checks only line up for a short window, after which the applicant must restart
the security check process. Additionally, with a lowered refugee cap of 50,000, there
are fewer resettlement slots available this fiscal year, adding to the delays in
resettlement. See Ex. __). Yet all of these clients have a strong relationship with
IRAP itself.
Representation by legal service providers, such as IRAP, constitute an attorney-client
relationship and qualify as a bona fide relationship between a refugee and a U.S. person or
entity.
31. Because of the complexity of the refugee resettlement process, IRAP lawyers and pro
bono legal teams work closely with their clients to bring them to safety. The
representation that IRAP provides is intensive and includes multiple forms of
assistance. For example, IRAP has offices in Amman, Jordan and Beirut, Lebanon
which are staffed with U.S.-barred attorneys where they regularly meet with refugee
clients, prep them for and accompany them to interviews, and assist them with
psychosocial, educational, and medical referrals to local partner organizations. IRAP

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also has case workers on staff, such as individuals trained in social work, who provide
non-legal support to our clients.
32. The intake and screening process itself establishes a strong relationship between the
organization and the client. This process can take several weeks to months, with
IRAP attorneys or volunteers spending hours each day interviewing a client,
establishing the facts underpinning his or her application, and preparing a declaration
and application on the basis of those facts.
33. After an intensive and exhaustive intake process, IRAP may take on a refugee’s case
for representation after signing a formal representation agreement. These cases
frequently require two to three years of representation, if not longer. IRAP attorneys
assist refugees through the process by conducting extensive fact finding to
corroborate their clients’ claims, drafting legal submissions before UNHCR and the
U.S. government advocating for their client’s case, and preparing their clients for the
adjudication interviews which can last for hours.

Additionally, IRAP attorneys

monitor their clients’ medical and protection needs and will request the relevant
agency to expedite processing if there is urgency in the case.

For P-2 DAP

employment cases, IRAP attorneys will assist with verifying the client’s affiliation
with the U.S. government, a U.S.-funded NGO, or a U.S. media organization. For P2 DAP family cases, IRAP attorneys assist the U.S.-based family member with filing
a Form I-130 to USCIS and then continues representing the refugee client once they
access USRAP.
34. If an application is denied by UNHCR, IRAP staff will assist clients by submitting an
appeal. If the U.S. government denies a client refugee status, IRAP attorneys prepare

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a Request for Review (“RFR”) on behalf of the client and also file Freedom of
Information Act (“FOIA”) requests to supplement their RFR. They conduct further
client interviews to prepare supplemental declarations, draft the request itself, and
help the client prepare for the interview.
35. Moreover, IRAP attorneys have provided guidance and advice to their refugee clients
entering the United States and have filed habeas petitions for clients who have been
unlawfully detained trying to enter the United States.
36. During this process, IRAP also provides other forms of practical assistance. For
example, IRAP has worked with partner organizations to provided safe housing for
clients whose lives are in immediate danger while they await the outcomes of
USRAP. IRAP has also worked with psychologists and psychiatrists to provide
counseling and evaluations to refugees who have suffered from severe persecution
and trauma and are in need of mental health treatment.
The U.S. government’s interpretation of the Supreme Court decision reflects a fundamental
misunderstanding of USRAP and an attempt to dismantle a lifeline for persecuted individuals.
The government’s actions continue to take a toll on IRAP’s clients and resources.
37. The government’s interpretation of the injunction will also continue the significant
backlog in the USRAP that resulted from the first Executive Order, delaying the
processing of many of IRAP’s clients’ cases. This delay will force IRAP to exhaust
more of its resources, as the average lifespan of a case now grows significantly. IRAP
has a legal department composed of staff attorneys who advise and provide
consultation to its network of pro bono legal volunteers on their casework. Because of
delays in processing, IRAP’s attorneys must spend significantly more time on each

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case, providing guidance about alternative routes to safety and possible exemptions.
In addition to IRAP’s staff attorneys’ existing and ongoing responsibilities, they must
now also draft and review additional submissions to State and to the Department of
Homeland Security (“DHS”), such as waiver requests for admission to the United
States for their clients, which will be reviewed by a case-by-case basis under the new
Executive Order. Further, IRAP’s field staff must largely give up their work on
refugee case processing and focus primarily on ensuring the local safety of refugees
who thought their lives would be saved for resettlement, and who are now caught in
life-threatening limbo.
38. As a result of the government’s narrow interpretation, IRAP attorneys must also
counsel their own clients about the changes in law as well as pursue other
resettlement options for them, even though many were already being processed in the
U.S. Refugee Admissions Program (“USRAP”). The first Executive Order has
already wasted significant resources (typically hundreds of hours of legal
representation over the course of many years navigating USRAP), forcing IRAP and
our clients to make the Hobson’s choice between starting the process over with
another country, attempting to shelter in place in spite of life-threatening
circumstances, or undertaking dangerous journeys to reach safety across other
borders.
39. I am deeply concerned by the U.S. government’s interpretation of the Supreme Court
decision. In addition to many refugees in USRAP accessing the program through a
bona fide relationship to a U.S. person or entity, all refugees develop a bona fide
relationship to a U.S.-based entity once a resettlement agency assures their reception

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and placement in the United States. Thus, to deny refugees in USRAP admission to
the United States based on a lack of bona fide ties is contrary to the functioning of the
refugee resettlement program.
40. Moreover, I believe that the government’s actions reflect an attempt to dismantle
USRAP. For example, in June 2017, I learned of denials of 50 Somali refugee cases
out of Kenya even though USCIS had not yet interviewed any of those families. In
other words, they were denied before a U.S. immigration officer even looked at their
case. Having worked with refugees for nearly a decade, I have never seen this type of
denial en masse before, and I fear that the government is seeking to block entire
nationalities from coming to the United States through USRAP.

I hereby declare under penalty of perjury that the foregoing is true and correct.
Dated: June 30, 2017

_________________
Rebecca Heller