State of Hawaii v. Trump

Filing 338

MEMORANDUM in Opposition re #328 MOTION to Enforce or, In the Alternative, to Modify 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. (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’
OPPOSION TO MOTION
TO ENFORCE OR, IN
THE ALTERNATIVE, TO
MODIFY PRELIMINARY
INJUNCTION
Judge: Hon. Derrick K.
Watson
Related Documents:
Dkt. No. 328

TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1
ARGUMENT .......................................................................................................... 3
I.

This Court Lacks Jurisdiction to Modify Its Preliminary
Injunction To Grant Additional Relief, and Any Order
“Enforcing” That Injunction Should Be Stayed Pending
Immediate Supreme Court Review .................................................... 3

II.

The Government’s Definition of “Close Family” Is
Consistent with the INA and the Supreme Court’s
Decision .............................................................................................. 5

III.

An Assurance From A Refugee Resettlement Agency
Does Not, By Itself, Create a Bona Fide Relationship..................... 10

IV.

Plaintiffs’ Other Challenges Regarding Refugees Are
Not Ripe and Mischaracterize the Government’s
Guidance ........................................................................................... 13

CONCLUSION ..................................................................................................... 15

i

TABLE OF AUTHORITIES

CASES
Kleindienst v. Mandel,
408 U.S. 753 (1972) .............................................................................................12
Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc.,
204 F.3d 867 (9th Cir. 2000) ..................................................................................3
Scialabba v. Cuellar de Osorio,
134 S. Ct. 2191 (2014) ...........................................................................................7
Swenson v. Stidham,
410 U.S. 904 (1973) ...............................................................................................4
Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080, 2017 WL 2722580 (U.S. June 26, 2017)........................... passim
United States v. Felipe,
No. 94 Cr. 395, 1997 WL 278111 (S.D.N.Y. May 22, 1997) ................................6

STATUTES
8 U.S.C. § 1101(a)(15)(k) ..........................................................................................5
8 U.S.C. § 1101(a)(15)(T)(ii)(III) ..............................................................................8
8 U.S.C. § 1101(b)(1)-(2) ..........................................................................................5
8 U.S.C. § 1151(b)(2)(A)(i) .......................................................................................5
8 U.S.C. § 1153(a) .....................................................................................................5
8 U.S.C. § 1153(a)-(b) ...............................................................................................6
8 U.S.C. § 1154 ..........................................................................................................6
8 U.S.C. § 1154(a) .....................................................................................................7
ii

8 U.S.C. § 1183a ........................................................................................................6
8 U.S.C. § 1183a(f)(1)(D) ..........................................................................................6
8 U.S.C. § 1183a(f)(4) ...............................................................................................6
8 U.S.C. § 1183a(f)(5) ...............................................................................................6
8 U.S.C. § 1183a(f)(5)(B)(i) ......................................................................................7
8 U.S.C. § 1183a(f)(5)(B)(ii) .....................................................................................7
8 U.S.C. § 1184(d) .....................................................................................................5
8 U.S.C. § 1433(a) .....................................................................................................8
Family Sponsor Immigration Act of 2002,
Pub. L. No. 107-150, 116 Stat. 74 ..........................................................................6
Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1990,
Pub. L. No. 101-167, 103 Stat. 1195 (1989) ........................................................15
National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, 122 Stat. 3 ..........................................................................15
USA PATRIOT Act of 2001,
Pub. L. No. 107-56, 115 Stat. 272 ..........................................................................8
REGULATIONS
8 C.F.R. § 213a.1 .......................................................................................................7
8 C.F.R. § 214.11(a)(3) ..............................................................................................8
Affidavits of Support on Behalf of Immigrants,
71 Fed. Reg. 35,732 (June 21, 2006)......................................................................7
iii

Exec. Order 13,780, 82 Fed. Reg. 13,209 (March 6, 2017) ............................ passim
Implementation of the Agreement Between the Government of the
United States of America and the Government of Canada Regarding
Asylum Claims Made in Transit and at Land Border Ports-of-Entry,
69 Fed. Reg. 69, 480 (Nov. 29, 2004) ....................................................................8

OTHER AUTHORITIES
Stephen M. Shapiro,
Supreme Court Practice (10th ed. 2013) ................................................................4

iv

INTRODUCTION
In denying Plaintiffs’ motion to clarify, this Court recognized that the
Supreme Court is the appropriate court to provide definitive guidance on the scope
of its stay. Rather than seeking relief from that Court, Plaintiffs took an improper
appeal that was summarily dismissed. Returning now to this Court, they repackage
their motion to clarify as a motion to enforce or modify this Court’s preliminary
injunction. This Court, however, lacks authority to modify the injunction to grant
additional relief beyond what the Supreme Court permitted. And because Plaintiffs
are not really seeking “enforcement” as to them, but instead are effectively
attempting to clarify the Supreme Court’s stay on behalf of third parties, Plaintiffs
should address their request to the Supreme Court in the first instance.
Regardless, there is no basis to provide the relief that Plaintiffs seek. As the
Government previously explained, its definition of “close family” is derived from
the Immigration and Nationality Act (“INA”) as it relates to eligibility for a familybased immigrant visa, and from the terms of the Executive Order itself. Plaintiffs
instead press a free-form definition of their own making. To the extent Plaintiffs
address the INA, they cite provisions and regulations that are either inapposite or
reflect narrow exceptions to general rules.
Nor are Plaintiffs entitled to any relief regarding the refugee provisions of the
Executive Order. Indeed, Plaintiffs’ blanket rule that every assurance creates a

qualifying, bona fide relationship between a refugee and a resettlement agency
would eviscerate the Supreme Court’s holding regarding Section 6(a). But as the
Government has demonstrated, assurances are agreements between the Government
and those agencies. Nor do Plaintiffs dispute that resettlement agencies typically
have no contact with refugees prior to their admission to the United States. Finally,
the remaining relief that Plaintiffs seek is not ripe, assumes a dispute where none
might exist, and conflicts with the analysis of the Supreme Court’s decision.1
For the reasons set forth below and in the Government’s prior filing, see ECF
No. 301 (“Gov. Mem.”), this Court should deny Plaintiffs’ motion. Should this
Court grant any relief to Plaintiffs, the Government requests that the Court stay that
relief pending the later of the prompt filing and disposition of a request by the
Government to the Supreme Court for clarification of its stay (and appeal to the
Ninth Circuit if the Supreme Court denies the clarification request), or the prompt
notification by the Government that it does not intend to seek any such further
review.

1

Plaintiffs no longer argue that the Government is improperly applying the Supreme
Court’s “credible claim” standard.
2

ARGUMENT
I.

This Court Lacks Jurisdiction to Modify Its Preliminary Injunction To
Grant Additional Relief, and Any Order “Enforcing” That Injunction
Should Be Stayed Pending Immediate Supreme Court Review.
Plaintiffs have repackaged their “motion to clarify” as a motion to enforce or,

in the alternative, to modify this Court’s preliminary injunction. See Pls.’ Mem. at
4-7, ECF No. 328-1. As an initial matter, this Court lacks jurisdiction to modify its
preliminary injunction, except to maintain the status quo under the Supreme Court’s
ruling, because certiorari has been granted in this case. See Prudential Real Estate
Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000).
Nor should this Court grant Plaintiffs’ putative motion to “enforce” the
injunction. Plaintiffs do not seek to protect themselves but, rather, third-party aliens
abroad who fall outside the scope of the Supreme Court’s stay; their arguments are
thus indistinguishable from those in their prior motion to clarify. This dispute
remains a “quarrel over the meaning and intent of words and phrases authored not
by this Court, but by the Supreme Court.” Order at 2, ECF No. 322. Resolving the
motion will, as before, require this Court to “substitute its own understanding of the
stay” for that of the Supreme Court. Id. at 5.
Accordingly, the appropriate course is for Plaintiffs to seek relief from the
Supreme Court in the first instance. This Court correctly noted that originating
courts are best positioned to interpret their own orders. See id. The Supreme Court
3

undoubtedly has authority to clarify or modify its own rulings and has done so even
after issuing an opinion on the merits. See Swenson v. Stidham, 410 U.S. 904 (1973);
Stephen M. Shapiro, Supreme Court Practice 841 (10th ed. 2013) (where a party
before the Supreme Court “is not seeking a change in the Court’s judgment on the
merits,” it may file a motion to clarify or modify an opinion of the Court). Thus, the
Supreme Court can clarify or amend its own stay in this case, which is still pending
before it.
To the extent this Court nonetheless grants any relief to Plaintiffs, it should
grant an interim stay of that relief. In partially granting the Government’s request
for a stay, the Supreme Court recognized that “[t]he interest in preserving national
security is ‘an urgent objective of the highest order’” and that preventing the
Government from enforcing the Executive Order “against foreign nationals
unconnected to the United States would appreciably injure its interests.” Trump v.
Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2017 WL 2722580, at *6 (U.S.
June 26, 2017) (per curiam). Because the parties dispute the scope of the stay, any
immediate relief this Court may grant would threaten these same interests,
potentially upset the equitable balance that the Supreme Court struck, and create
significant confusion as the Government continues to implement the Executive
Order consistent with court orders. Indeed, a stay is particularly warranted because

4

Plaintiffs could have avoided all of this by seeking relief directly from the Supreme
Court in the first instance.
II.

The Government’s Definition of “Close Family” Is Consistent with the
INA and the Supreme Court’s Decision.
For relationships with individuals, “a close familial relationship is required”

to fall outside the scope of the Supreme Court’s stay. Id. at *7 (emphasis added).
The parties disagree on the contours of that “relationship.”
The Government’s definition draws from the INA itself, which provides the
definitions of familial relationships that are relevant here. See Gov. Mem. at 7-13.
This authority includes 8 U.S.C. §§ 1151(b)(2)(A)(i) (defining “immediate
relatives” as “the children, spouses, and parents” of U.S. citizens); 1101(b)(1)-(2)
(including step-relationships in definitions of “child” and “parent”); 1153(a)
(privileging 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 in allotting
numerically-limited visas); and 1101(a)(15)(K) and 1184(d) (recognizing and giving
special accommodation to fiancés).2 Rather than focusing on this directly relevant

2

Plaintiffs previously argued that some of this authority is inapposite to the extent it
involves the allocation of a numerically-limited number of visas. See Pls.’ Reply at
6, ECF No. 303. Regardless of the number of visas to be issued, all of these
provisions draw lines in the context of determining which familial relationships are
close enough to petition for a visa under the INA. That is exactly the type of linedrawing that the Supreme Court’s opinion requires.
5

statutory scheme, Plaintiffs draw strained analogies from cases involving local
housing ordinances and prisoner civil rights. See Pls.’ Mem. at 8. Even these nonimmigration cases, however, undermine Plaintiffs’ position. See United States v.
Felipe, No. 94 Cr. 395, 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’”).
To the extent Plaintiffs address the INA at all, they rely on a handful of INA
provisions or regulations that are not relevant or that otherwise reflect narrow
exceptions to the general rules. For example, Plaintiffs claim that a provision in the
Family Sponsor Immigration Act of 2002 defines an alien’s sister-in-law, brotherin-law, grandparents, and grandchildren as “close family.” Pls.’ Mem. at 9 (quoting
Pub. L. No. 107-150, § 2(a) (codified at 8 U.S.C. § 1183a(f)(5))). That provision,
however, does not directly address who may petition for a visa, but instead who may
serve as a financial sponsor for certain aliens. See 8 U.S.C. § 1183a.
And even in that context, the provision reflects the distinctions between close
and extended family that the Government draws here. 8 U.S.C. § 1183a(f)(1)(D)
and (f)(4) require that the financial sponsor be the relative who is petitioning under
§ 1154 to classify the alien as a family-sponsored or employment-based immigrant
(or a relative with a significant ownership interest in the entity filing an employmentbased petition). See id. § 1153(a)-(b). Only spouses, parents, sons, daughters, and
6

siblings may file family-sponsored petitions, and the eligible “relatives” in the
employment-based context are limited to the same family members.

See id.

§ 1154(a); 8 C.F.R. § 213a.1 (defining relative to include spouse, parents, children,
and siblings); see also Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg.
35,732; 35,733 (June 21, 2006) (defining “‘relative,’ for purposes of the affidavit of
support requirement, to include only those family members who can file alien
relative visa petitions”). Only when a petitioner has died and the petition either
converts to a widow(er) petition or the Secretary of the Department of Homeland
Security (“DHS”) reinstates the petition on humanitarian grounds can one of the
extended family members that Plaintiffs cite serve as a financial sponsor under this
provision. See Pls.’ Mem. at 9; 8 U.S.C. § 1183a(f)(5)(B)(i), (ii). And even then,
siblings-in-law and grandparents only serve as financial sponsors; they cannot
petition for a visa applicant. Cf. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191,
2213 (2014) (“grandchildren, nieces, or nephews of citizens [are] relationships [that]
d[o] not independently entitle [those family members] to visas”).3
Each of Plaintiffs’ other authorities represent a narrow exception to the INA’s
general rules on which the Government has relied. For example, Plaintiffs cite a

3

Plaintiffs also note that a juvenile alien may be released from custody to an aunt,
uncle, or grandparent. See Pls.’ Mem. at 9-10. While that may be true in certain
circumstances, that says nothing about how immigration law treats which familial
relationships may petition for visas for certain family members.
7

human-trafficking regulation that allows grandchildren, nieces, and nephews to be
eligible for T visas (for victims of human trafficking), but only if DHS determines
that they face “a present danger of retaliation as a result of the principal’s escape
from the severe form of trafficking in persons or cooperation with law enforcement.”
Pls.’ Mem. at 10; 8 U.S.C. § 1101(a)(15)(T)(ii)(III); 8 C.F.R. § 214.11(a)(3).
Plaintiffs also cite DHS regulations that allow an individual to “apply for
asylum if a ‘grandparent, grandchild, aunt, uncle, niece, or nephew’ resides in the
United States,” Pls.’ Mem at 10 (quoting 69 Fed. Reg. 69,480, 69,488 (Nov. 29,
2004)), but those provisions were compelled by a negotiated agreement with Canada
that included broader familial definitions than typically available under the INA. See
69 Fed. Reg. at 69,480 (discussing “Safe Third Countries Agreement”).
Plaintiffs similarly can find no support in 8 U.S.C. § 1433(a). That provision
allows an application on behalf of a grandchild, see Pls.’ Mem. at 10, but only under
very limited circumstances, including the death of a U.S. citizen parent.
The USA PATRIOT Act’s provisions, see Pls.’ Mem. at 10, similarly are
applicable only if the grandchild is an orphan and “both . . . parents died as a direct
result of . . . [the 9/11 attacks],” and at least one of the parents was, on September
10, 2001, a U.S. Citizen or Lawful Permanent Resident. Pub. L. No. 107-56,
§ 421(b)(3), 115 Stat. 272.

8

Rather than all these narrow and contingent exceptions that Plaintiffs invoke,
the Government appropriately relied on the typical definition of close familial
relationships. Applying that typical definition is especially appropriate here:

The

Supreme Court’s use of the phrase “close familial relationship” is nearly identical to
language in the waiver provisions of Section 3(c)(iv) of the Executive Order,
providing further support for the Government’s definition. And even if there were
any ambiguity in the Supreme Court’s stay, the Government’s reasonable
construction—based on the typical rules reflected in the immigration statute that it
administers—should receive deference.
Plaintiffs further argue that, because the Supreme Court included Dr.
Elshikh’s mother-in-law within the scope of its stay, it also must have intended that
grandparents, aunts, cousins, and the like should be included. See Pls.’ Mem. at 8.
Plaintiffs do not point to any support in the Supreme Court’s opinion for that
position, and there is none. As the Government previously noted, the Supreme Court
merely examined “[t]he facts of the[] cases” presented to it in deciding that Dr.
Elshikh’s mother-in-law would be subject to the Court’s stay, Trump, 2017 WL
2722580, at *7, and the Government is treating all parents-in-law (and children-inlaw) as being within the definition of “close famil[y].” See Gov. Mem. at 11-12 &
n.2. In seeking to apply a broader definition, Plaintiffs ignore the Government’s
argument that, as was factually the case with Dr. Elshikh’s mother-in-law, parents9

in-law of persons in the United States will often also be parents of persons in the
United States. See Elshikh Decl. ¶¶ 1, 4, ECF No. 66-1. This places the parent-inlaw relationship in a fundamentally different position from the other relatives that
Plaintiffs seek to have included, including siblings-in-law. See Gov. Mem. at 12 n.2.
III.

An Assurance From A Refugee Resettlement Agency Does Not, By
Itself, Create a Bona Fide Relationship.
As the Government has previously argued, an assurance from a resettlement

agency, by itself, does not create a “bona fide relationship” between a refugee and
“a[n] . . . entity in the United States.” Trump, 2017 WL 2722580, at *7; see Gov.
Mem. at 14-20. Plaintiffs nonetheless contend that the terms of assurances establish
a qualifying relationship because they require resettlement agencies to prepare in
advance for a refugee’s arrival pursuant to the assurance. See Pls.’ Mem. at 11-12.
Plaintiffs fail to come to grips with the fact that their position would eviscerate
the Supreme Court’s order as to refugees. As the Government previously noted,
23,958 refugees have been assured as of June 30, which is more than the number
that would likely be scheduled to enter the United States in the next 120 days. See
Gov. Mem. at 17-18; Bartlett Decl. ¶ 17, ECF No. 301-1. Plaintiffs previously
responded that this cohort is a “fraction” of the 200,000 individuals seeking refugee
status. Pls.’ Reply at 12. But the total number of individuals seeking refugee status
is irrelevant, as the Executive Order suspends entry of refugees for only the next 120
days. Virtually all of the refugees likely to enter in the next 120 days already have
10

an assurance from a resettlement agency. If an assurance is all that is necessary to
create a qualifying bona fide relationship, the Supreme Court’s order allowing
suspension to “take effect” for certain refugees, Trump, 2017 WL 2722580, at *7,
would be rendered meaningless.
Moreover, Plaintiffs miss the critical point that the various steps that a
resettlement agency may take before a refugee arrives are all pursuant to (and
required by) a contract the resettlement agency enters into with the Government. See
Pls.’ Mem. at 12; Gov. Mem. at 14-15; Bartlett Decl. ¶ 15 & Att. 2. That a
resettlement agency owes contractual obligations to the Government does not
establish a qualifying relationship with refugees. Plaintiffs also do not dispute that
resettlement agencies typically have no direct contact with refugees before their
arrival in the United States. See Gov. Mem. at 15; Bartlett Decl. ¶ 21.
Plaintiffs alternatively contend that resettlement agencies are harmed because
they have devoted private resources to refugee work and may lose federal funding.
See Pls.’ Mem. at 12. Even assuming this to be true, any such harm flows not from
an independent, pre-existing relationship with the refugee, but from the agencies’
contracts with the Government.4

4

Plaintiffs previously argued that the Government’s guidance indicates that visa
applicants who have a relationship with the U.S. Government itself have a bona fide
relationship as a result. See Pls.’ Reply at 10. Plaintiffs have misread that guidance.
https://travel.state.gov/content/visas/en/immigrate/iraqi-afghan-translator.html.
The SI and SQ visas that Plaintiffs reference are for Iraqi and Afghani nationals who
11

Plaintiffs dismiss the fact that resettlement agencies do not typically interact
with refugees prior to arrival by noting that lecturers can be invited through agents.
Pls.’ Mem. at 13. The analogy is inapt. Agents inviting lecturers do so on behalf of
the private organization that hired them. Resettlement agencies, in contrast, provide
services to refugees on the Government’s behalf. Moreover, the Supreme Court
relied upon the First Amendment in noting that excluding lecturers could affect the
rights of U.S.-based people or entities. See Trump, 2017 WL 2722580, at *5 (citing
Kleindienst v. Mandel, 408 U.S. 753, 763-65 (1972)). Plaintiffs alternatively note
that a “refugee and a son-in-law” may have never met, see Pls.’ Mem. at 13, but that
speculative scenario is irrelevant because it is nevertheless a close familial
relationship. In addition to the Supreme Court’s adoption of different relationship
standards for individuals and entities, see Trump, 2017 WL 2722580, at *6-7, there
is an obvious difference between an actual family member whom one has not yet
met and a potential third-party with whom there has not been any direct contact.
Finally, Plaintiffs assert that, if Hawaii has a bona fide relationship with
refugees that are to be resettled in the State, then resettlement agencies that have

worked with the U.S. Government in those locations, and thus do not even fall within
the scope of Section 2(c) of the Executive Order (which applies neither to Iraq nor
Afghanistan). Moreover, the Q&A cited by Plaintiffs, Opp. Ex. A, ECF No. 301-2,
at 2, specifically notes that applicants for other special immigrant visas of the type
that Plaintiffs discuss “may be subject to the E.O.” unless they satisfy the
relationship standards adopted in the Supreme Court’s stay.
12

provided an assurance must have the necessary relationship because their connection
to an assured refugee is less removed than the State’s. See Pls.’ Mem. at 13. This
argument, however, assumes that a State can establish the requisite relationship with
a refugee merely because the refugee will be resettled within its borders. The
Supreme Court made no such determination: Unlike its discussion of Section 2(c),
its discussion of Section 6 conspicuously did not find that Hawaii or Dr. Elshikh had
the requisite relationship with any refugee. See Trump, 2017 WL 2722580, at *7.
As with a mere agency assurance, such a conclusion would render the Supreme
Court’s stay meaningless, as all refugees will be resettled within some State.
IV.

Plaintiffs’ Other Challenges Regarding Refugees Are Not Ripe and
Mischaracterize the Government’s Guidance.
Plaintiffs also seek to have this Court “enforce” its preliminary injunction as

to other refugee-related issues, but these issues are not ripe and there is no credible
allegation that the Government is violating the Supreme Court’s stay. Plaintiffs
would have this Court modify its injunction by adding requirements that, at best,
appear nowhere in the Supreme Court’s opinion or, at worst, contradict that opinion.
This Court should reject that invitation.
Plaintiffs assert that the Government is violating the injunction because it
“‘has yet to determine’ whether [refugees] who have already booked travel may
enter the United States after July 6.” Pls.’ Mem. at 13-14 (quoting Gov. Mem. at
18-19). The Government has now provided guidance on this issue: All refugees
13

with travel bookings through July 12 may travel as planned, and any refugee with
travel bookings after July 12 may travel pursuant to those bookings if they have a
credible claim to a bona fide relationship with a person or entity in the United States.
Supp. Hetfield Decl. Ex. A ¶ 1, ECF No. 336-3. Moreover, Plaintiffs’ bootstrap
argument that refugees with travel bookings have a qualifying relationship due to
the assurance-related services they will receive—such as a place to live and other
arrangements—fails for the same reasons that their assurance argument fails.5
Finally, Plaintiffs seek to have this Court “enforce” its injunction by requiring
the Government to automatically treat all client relationships with legal services
organizations as protected by the injunction. See Pls.’ Mem. at 14-15. But as the
Government has explained, those relationships may vary from organization to
organization and refugee to refugee. See Gov. Mem. at 21. Nothing in the Supreme
Court’s stay required the Government to treat all such relationships alike or to
categorically assume that all such relationships automatically meet the Court’s
standard (regardless of the nature of the relationship or the amount of contact
between the organization and refugee); to the contrary, the Court specifically noted,
for example, that a relationship created for the purpose of “evading EO-2” would

5

Plaintiffs also quarrel over State Department guidance temporarily pausing travel
bookings, see Pls.’ Mem. at 14, but updated guidance reflects that the Department
“will issue guidance the week of July 10 on when new ABNs may be scheduled for
new cases with bona fide relationships.” Supp. Hetfield Decl. Ex. A ¶ 14.
14

not qualify and cited the situation of an organization improperly contacting “foreign
nationals from the designated countries, add[ing] them to client lists, and then
secur[ing] their entry by claiming injury from their exclusion.” Trump, 2017 WL
2722580, at *7. This requires a case-by-case analysis. Plaintiffs’ blanket approach,
in contrast, would have the Court effectively (and improperly) broaden the scope of
relief beyond what the Supreme Court permitted.6
CONCLUSION
The Court should deny Plaintiffs’ motion. Should this Court grant any relief
to Plaintiffs, the Government requests that the Court grant an interim stay of that
relief as described above.

6

Plaintiffs also claim that “three categories of refugee applicants” are exempt from
the Executive Order: “‘U.S.-affiliated Iraqis’ at risk of persecution” and participants
in the Lautenberg Program and the Central American Minors Program. Pls.’ Mem.
at 15 n.6. But while some applicants through the identified programs would have
qualifying bona fide relationships, others would not. For the Central American
Minors Program, some caregivers may not have a sufficiently close relationship to
a U.S.-based parent to qualify as a “close family member.” See Gov. Mem. at 19
n.6. Likewise, the Lautenberg Program, which was established in §§ 599D and 599E
of the Foreign Operations, Export Financing, and Related Appropriations Act, Fiscal
Year 1990, Pub. L. No. 101-167, 103 Stat. 1195 (1989), includes grandparents and
grandchildren in the family relationship criteria for applicants. And the Iraqi Direct
Access Program includes certain nonqualifying relationships with the U.S.
Government itself, as well as past (not current) relationships. See National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, Title XII, Subtitle C,
§ 1243(a)(1)-(4), 122 Stat. 3. In any event, the mere fact that the Government has
not categorically exempted these programs does not mean that the Government is
not complying with the injunction or that qualifying participants in these programs
would be subject to the Executive Order.
15

Dated: July 11, 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

16

CERTIFICATE OF SERVICE
I hereby certify that, on July 11, 2017, by the methods of service noted
below, a true and correct copy of the foregoing was served on the following at
their last known addresses:
Served Electronically through CM/ECF:
Alexander Bowerman [e-mail]
Clyde J. Wadsworth
[e-mail]
Colleen Roh Sinzdak
[e-mail]
Deirdre Marie-Iha
[e-mail]
Donna H. Kalama
[e-mail]
Douglas S.G. Chin
[e-mail]
Elizabeth Hagerty
[e-mail]
Kimberly T. Guidry
[e-mail]
Mitchell Reich
[e-mail]
Neal Katyal
[e-mail]
Robert T. Nakatsuji
[e-mail]
Sara Solow
[e-mail]
Thomas Schmidt
[e-mail]
Date: July 11, 2017

/s/ Brad P. Rosenberg
Brad P. Rosenberg
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants