State of Hawaii v. Trump

Filing 37

FIRST AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by State of Hawaii. (Attachments: # 1 Certificate of Service)(Katyal, Neal) Modified docket text on 2/14/2017 (ecs, ).

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawai‘i

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
*Admitted Pro Hac Vice

Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,
v.

Civil Action No. 1:17-cv-00050DKW-KJM

DONALD J. TRUMP, in his official capacity
as President of the United States; U.S.
DEPARTMENT OF HOMELAND
FIRST AMENDED COMPLAINT
SECURITY; JOHN F. KELLY, in his official
FOR DECLARATORY AND
capacity as Secretary of Homeland Security;
INJUNCTIVE RELIEF
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED STATES
OF AMERICA,
Defendants.

ADDITIONAL COUNSEL
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawai‘i

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY**
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Pro Hac Vice Applications
Forthcoming
**Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

INTRODUCTION
1.

The State of Hawai‘i (the “State”) brings this action to protect its

residents, its employers, its educational institutions, and its sovereignty against
illegal actions of President Donald J. Trump and the federal government,
specifically: President Trump’s January 27, 2017 Executive Order, “Protecting the
Nation From Terrorist Entry into the United States” (the “Executive Order”).
Plaintiff Ismail Elshikh, PhD, the Imam of the Muslim Association of Hawai‘i,
joins the State in its challenge because the Executive Order inflicts a grave injury
on Muslims in Hawai‘i, including Mr. Elshikh, his family, and members of his
Mosque.
2.

President Trump’s Executive Order blocks the entry into the United

States, including Hawai‘i, of any person from seven Muslim-majority countries:
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1 The Executive Order has
led to the detention of lawful permanent residents and noncitizens with valid visas
seeking to enter or reenter the country. It has led to hundreds of persons overseas
with valid visas—students, family members of U.S. citizens, and persons whose
green card status was approved—being turned away from boarding plane flights to
the United States. The Executive Order also introduces religious criteria for the
admission of refugees into the United States, including Hawai‘i: After suspending
all refugee admissions for 120 days, President Trump’s Executive Order prioritizes
refugees who claim religious-based persecution where “the religion of the
individual is a minority religion in the individual’s country of nationality.” In
Muslim-majority countries, this means a preference for Christians.
1

See Executive Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017). A copy of
the Executive Order is attached as Exhibit 1. All Exhibit citations herein refer
back to the exhibits attached to the original Complaint filed in this action on
February 3, 2017 (Dkt. 1), which are incorporated herein by reference.
1

3.

President Trump’s Executive Order is tearing apart Hawai‘i families,

including those of Mr. Elshikh and members of his Mosque. The Executive Order
is subjecting a portion of Hawaii’s population, including Mr. Elshikh, his family,
and members of his Mosque, to discrimination and second-class treatment, and
denying some their fundamental right to travel overseas. Moreover, the Executive
Order is damaging Hawaii’s economy, wounding Hawai‘i institutions, and eroding
Hawaii’s sovereign interests in maintaining the separation between church and
state and in welcoming persons from all nations around the world into the fabric of
its society.
4.

Plaintiffs accordingly seek an Order invalidating the portions of

President Trump’s Executive Order challenged here.
JURISDICTION AND VENUE
5.

This Court has Federal Question Jurisdiction under 28 U.S.C. § 1331

because this action arises under the U.S. Constitution, the Administrative
Procedure Act (“APA”), the Immigration and Nationality Act (“INA”), and other
Federal statutes.
6.

The Court is authorized to award the requested declaratory and

injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and
the APA, 5 U.S.C. § 706.
7.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2)

and (e)(1). A substantial part of the events giving rise to this claim occurred in this
District, and each Defendant is an officer of the United States sued in his official
capacity.
PARTIES
8.

Plaintiffs are the State of Hawai‘i and Ismail Elshikh, PhD.

2

9.

Hawai‘i is the nation’s most ethnically diverse State, and is home to

more than 250,000 foreign-born residents. More than 100,000 of Hawaii’s
foreign-born residents are non-citizens.2
10.

Estimates from the Fiscal Policy Institute show that as of 2010,

Hawai‘i had the fifth-highest percentage of foreign-born workers of any state (20%
of the labor force). And 22.5% of Hawai‘i business owners were foreign-born.3
11.

Thousands of people living in Hawai‘i obtain lawful permanent

resident status each year, including over 6,500 in 2015.4 That includes numerous
individuals from the seven designated countries. According to DHS statistics, over
100 Hawai‘i residents from Iran, Iraq, and Syria have obtained lawful permanent
resident status since 2004 (DHS has withheld data pertaining to additional
residents from the seven designated countries).5
12.

Hawai‘i is also home to 12,000 foreign students.6 That includes

numerous individuals from the seven designated countries. At the University of
Hawai‘i, there are at least 27 graduate students from the seven countries studying
pursuant to valid visas issued by the U.S. government.

2

United States Census Bureau, 2015 American Community Survey 1-Year
Estimates, available at https://goo.gl/IGwJyf. A collection of the relevant data for
Hawai‘i is attached as Exhibit 2.
3
The Fiscal Policy Institute, Immigrant Small Business Owners, at 24 (June 2012),
available at https://goo.gl/vyNK9W.
4
U.S. Department of Homeland Security, Lawful Permanent Residents
Supplemental Table 1: Persons Obtaining Legal Permanent Resident Status by
State or Territory of Residence and Country of Birth Fiscal Year 2015, available at
https://goo.gl/ELYIkn. Copies of these tables for fiscal years 2005 through 2015
are attached as Exhibit 3.
5
See Exhibit 3.
6
Hawaii Department of Business, Economic Development & Tourism, The
Economic Impact of International Students in Hawaii – 2016 Update, at 8 (June
2016), available at https://goo.gl/mogNMA.
3

13.

In 2016, Hawaii’s foreign students contributed over $400 million to

Hawaii’s economy through the payment of tuition and fees, living expenses, and
other activities. These foreign students supported 7,590 jobs and generated more
than $43 million in state tax revenues.7
14.

In 2009, foreign residents (i.e., non-citizens who had not obtained

lawful permanent resident status) made up 42.9% of doctorate students, and 27.7%
of master’s students, in science, technology, engineering, and mathematics
(“STEM”) programs in Hawai‘i.8
15.

Hawaii’s educational institutions have diverse faculties. At the

University of Hawai‘i, there are approximately 477 international faculty members
legally present in the United States. There are at least 10 faculty members at the
University who are legal permanent residents from one of the seven designated
countries, and 30 visiting faculty members with valid visas who are from one of
the seven designated countries.
16.

Tourism is Hawaii’s “lead economic driver.”9 In 2015 alone, Hawai‘i

welcomed 8.7 million visitors accounting for $15 billion in spending.10
17.

Hawai‘i is home to several airports, including Honolulu International

Airport and Kona International Airport.
18.

David Yutaka Ige is the Governor of Hawai‘i, the chief executive

officer of the State of Hawai‘i. The Governor is responsible for overseeing the
7

The Economic Impact of International Students in Hawaii – 2016 Update, supra,
at 10-11.
8
U.S. Chamber of Commerce et al., Help Wanted: The Role of Foreign Workers in
the Innovation Economy, at 21 (2013), available at https://goo.gl/c3BYBu.
9
Hawai‘i Tourism Authority, 2016 Annual Report to the Hawai‘i State Legislature,
at 20, available at https://goo.gl/T8uiWW.
10
Hawai‘i Tourism Authority, 2015 Annual Visitor Research Report, at 2,
available at https://goo.gl/u3RQmX. A copy of the table of contents and executive
summary of this report is attached as Exhibit 4.
4

operations of the State government, protecting the welfare of Hawaii’s citizens,
and ensuring that the laws of the State are faithfully executed.
19.

Douglas S. Chin is the Attorney General of Hawai‘i, the chief legal

officer of the State. The Attorney General is charged with representing the State in
Federal Court on matters of public concern.
20.

The Constitution of the State of Hawai‘i provides that “[n]o law shall

be enacted respecting an establishment of religion, or prohibiting the free exercise
thereof.” Haw. Const. Art. I § 4. And the State has declared that the practice of
discrimination “because of race, color, religion, age, sex, including gender identity
or expression, sexual orientation, marital status, national origin, ancestry, or
disability” is against public policy. Haw. Rev. Stat. Ann. § 381-1; accord id. §§
489-3 & 515-3.
21.

The State has an interest in protecting the health, safety, and welfare

of its residents—including residents awaiting adjustment of their immigration
status or naturalization—and in safeguarding its ability to enforce State law. The
State also has an interest in “assuring that the benefits of the federal system,”
including the rights and privileges protected by the United States Constitution and
Federal statutes, “are not denied to its general population.” Alfred L. Snapp &
Sons v. Puerto Rico, 458 U.S. 592, 608 (1982). The State’s interests extend to all
of the State’s residents, including individuals who suffer indirect injuries and
members of the general public.
22.

Plaintiff Ismail Elshikh, PhD, is an American citizen of Egyptian

descent. He has been a resident of Hawai‘i for over a decade.
23.

Mr. Elshikh is the Imam of the Muslim Association of Hawai‘i. He is

a leader within Hawaii’s Islamic community.
24.

Mr. Elshikh’s wife is of Syrian descent and is also a resident of

Hawai‘i.
5

25.

Mr. Elshikh’s mother-in-law is a Syrian national, living in Syria. Mr.

Elshikh’s wife filed an I-130 Petition for Alien Relative on behalf of her mother in
September 2015. The I-130 Petition was approved in February 2016.
26.

Mr. Elshikh and his wife have five children. They are all American

citizens and residents of Hawai‘i.
27.

Defendant Donald J. Trump is the President of the United States. He

issued the January 27, 2017 Executive Order that is the subject of this Complaint.
28.

Defendant U.S. Department of Homeland Security (“DHS”) is a

federal cabinet agency responsible for implementing and enforcing the
Immigration and Nationality Act (“INA”) and the Executive Order that is the
subject of this Complaint. DHS is a Department of the Executive Branch of the
United States Government, and is an agency within the meaning of 5. U.S.C. §
552(f). U.S. Customs and Border Protection (“CBP”) is an Operational and
Support Component agency within DHS, and is responsible for detaining and
removing non-citizens from Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen
who arrive at air, land, and sea ports across the United States, including Honolulu
International Airport and Kona International Airport.
29.

Defendant John F. Kelly is the Secretary of Homeland Security. He is

responsible for implementing and enforcing the INA and the Executive Order that
is the subject of this Complaint, and he oversees CBP. He is sued in his official
capacity.
30.

Defendant U.S. Department of State is a federal cabinet agency

responsible for implementing the U.S. Refugee Admissions Program and the
Executive Order that is the subject of this Complaint. The Department of State is a
Department of the Executive Branch of the United States Government, and is an
agency within the meaning of 5 U.S.C. § 552(f).

6

31.

Defendant Rex Tillerson is the Secretary of State. He oversees the

Department of State’s implementation of the U.S. Refugee Admissions Program
and the Executive Order that is the subject of this Complaint. The Secretary of
State has authority to determine and implement certain visa procedures for noncitizens. Secretary Tillerson is sued in his official capacity.
32.

Defendant United States of America includes all government agencies

and departments responsible for the implementation of the INA, and for detention
and removal of non-citizens from Iran, Iraq, Syria, Somalia, Sudan, Libya, and
Yemen who arrive at air, land, and sea ports across the United States, including
Honolulu International Airport and Kona International Airport.
ALLEGATIONS
A.

President Trump’s Campaign Promises
33.

President Trump repeatedly campaigned on the promise that he would

ban Muslim immigrants and refugees from entering the United States, particularly
from Syria, and maintained the same rhetoric after he was elected.
34.

On July 11, 2015, Mr. Trump claimed (falsely) that Christian refugees

from Syria are blocked from entering the United States. In a speech in Las Vegas,
Mr. Trump said, “If you’re from Syria and you’re a Christian, you cannot come
into this country, and they’re the ones that are being decimated. If you are
Islamic . . . it’s hard to believe, you can come in so easily.”11
35.

On September 30, 2015, while speaking in New Hampshire about the

10,000 Syrian refugees the Obama Administration had accepted for 2016, Mr.

11

Louis Jacobson, Donald Trump says if you’re from Syria and a Christian, you
can’t come to the U.S. as a refugee, Politifact (July 20, 2015 10:00 AM ET),
https://goo.gl/fucYZP.
7

Trump said “if I win, they’re going back!” He said “they could be ISIS,” and
referred to Syrian refugees as a “200,000-man army.”12
36.

On December 7, 2015, shortly after the terror attacks in Paris, Mr.

Trump issued a press release entitled: “Donald J. Trump Statement on Preventing
Muslim Immigration.”13 The press release stated: “Donald J. Trump is calling for
a total and complete shutdown of Muslims entering the United States . . . .” The
release asserted that “there is great hatred towards Americans by large segments of
the Muslim population.” The press release remains accessible on
www.donaldjtrump.com as of this filing.
37.

The next day, when questioned about the proposed “shutdown,” Mr.

Trump compared his proposal to President Franklin Roosevelt’s internment of
Japanese Americans during World War II, saying, “[Roosevelt] did the same
thing.”14 When asked what the customs process would look like for a Muslim noncitizen attempting to enter the United States, Mr. Trump said, “[T]hey would say,
are you Muslim?” The interviewer responded: “And if they said ‘yes,’ they would
not be allowed into the country.” Mr. Trump said: “That’s correct.”15
38.

During a Republican primary debate in January 2016, Mr. Trump was

asked about how his “comments about banning Muslims from entering the country

12

Ali Vitali, Donald Trump in New Hampshire: Syrian Refugees Are ‘Going Back,
NBC News (Oct. 1, 2015 7:33 AM ET), https://goo.gl/4XSeGX.
13
Press Release, Donald J. Trump for President, Donald J. Trump Statement on
Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ.
A copy of this press release is attached as Exhibit 5.
14
Jenna Johnson, Donald Trump says he is not bothered by comparisons to Hitler,
The Washington Post (Dec. 8, 2016), https://goo.gl/6G0oH7.
15
Nick Gass, Trump not bothered by comparisons to Hitler, Politico (Dec. 8, 2015
7:51 AM ET), https://goo.gl/IkBzPO.
8

created a firestorm,” and whether he wanted to “rethink this position.” He said,
“No.”16
39.

A few months later, in March 2016, Mr. Trump said, during an

interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between
the West and radical Islam, or between the West and Islam itself?” He replied:
“It’s very hard to separate. Because you don’t know who’s who.”17
40.

Later, as the presumptive Republican nominee, Trump began using

facially neutral language, at times, to describe the Muslim ban. Following the
mass shootings at an Orlando nightclub in June 2016, Mr. Trump gave a speech
promising to “suspend immigration from areas of the world where there’s a proven
history of terrorism against the United States, Europe or our allies until we fully
understand how to end these threats.” But he continued to link that idea to the
need to stop “importing radical Islamic terrorism to the West through a failed
immigration system.” He said that “to protect the quality of life for all
Americans—women and children, gay and straight, Jews and Christians and all
people then we need to tell the truth about radical Islam.” And he criticized
Hillary Clinton for, as he described it, “her refusal to say the words ‘radical
Islam,’” stating: “Here is what she said, exact quote, ‘Muslims are peaceful and
tolerant people, and have nothing whatsoever to do with terrorism.’ That is Hillary
Clinton.” Mr. Trump further stated that the Obama administration had “put
political correctness above common sense,” but said that he “refuse[d] to be
politically correct.”
16

The American Presidency Project, Presidential Candidates Debates: Republican
Candidates Debate in North Charleston, South Carolina (January 14, 2016),
https://goo.gl/se0aCX.
17
Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump (CNN
television broadcast Mar. 9, 2016 8:00 PM ET), transcript available at
https://goo.gl/y7s2kQ.
9

41.

Mr. Trump’s June 2016 speech also covered refugees. He said that

“[e]ach year the United States permanently admits 100,000 immigrants from the
Middle East and many more from Muslim countries outside of the Middle East.
Our government has been admitting ever-growing numbers, year after year,
without any effective plan for our own security.”18 He issued a press release
stating: “We have to stop the tremendous flow of Syrian refugees into the United
States.”19
42.

Later, on July 24, 2016, Mr. Trump was asked: “The Muslim ban. I

think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t
think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at
territories. People were so upset when I used the word Muslim. Oh, you can’t use
the word Muslim. Remember this. And I’m okay with that, because I’m talking
territory instead of Muslim.”20
43.

During an October 9, 2016 Presidential Debate, Mr. Trump was asked:

“Your running mate said this week that the Muslim ban is no longer your position.
Is that correct? And if it is, was it a mistake to have a religious test?” Mr. Trump
replied: “The Muslim ban is something that in some form has morphed into a[n]
extreme vetting from certain areas of the world.” When asked to clarify whether
“the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”21

18

Ryan Teague Beckwith, Read Donald Trump’s Speech on the Orlando Shooting,
Time (June 13, 2016 4:36 PM ET), https://goo.gl/kgHKrb.
19
Press Release, Donald J. Trump for President, Donald J. Trump Addresses
Terrorism, Immigration, and National Security (June 13, 2016), available at
https://goo.gl/GcrFhw.
20
Meet the Press (NBC television broadcast July 24, 2016), transcript available at
https://goo.gl/jHc6aU. A copy of this transcript is attached as Exhibit 6.
21
The American Presidency Project, Presidential Debates: Presidential Debate at
Washington University in St. Louis, Missouri (Oct. 9, 2016), https://goo.gl/iIzf0A.
10

44.

Then, on December 21, 2016, following terror attacks in Berlin, Mr.

Trump was asked whether he had decided “to rethink or re-evaluate [his] plans to
create a Muslim registry or ban Muslim immigration to the United States.” Mr.
Trump replied: “You know my plans. All along, I’ve been proven to be right.”22
B.

President Trump’s Executive Order
45.

Within a week of being sworn in, President Trump acted upon his

ominous campaign promises to restrict Muslim immigration, curb refugee
admissions, and prioritize non-Muslim refugees.
46.

In an interview on January 25, 2017, Mr. Trump discussed his plans to

implement “extreme vetting” of people seeking entry into the United States. He
remarked: “[N]o, it’s not the Muslim ban. But it’s countries that have tremendous
terror. . . . [I]t’s countries that people are going to come in and cause us
tremendous problems.”23
47.

Two days later, on January 27, 2017, President Trump signed the

Executive Order that is the subject of this Complaint, which is entitled “Protecting
the Nation From Terrorist Entry into the United States.”
48.

The Executive Order was issued without a notice and comment period

and without interagency review. Moreover, the Executive Order was issued with
little explanation of how it could further its stated objective.
49.

When signing the Executive Order, President Trump read the title,

looked up, and said: “We all know what that means.”24 President Trump said he

22

President-Elect Trump Remarks in Palm Beach, Florida, C-SPAN (Dec. 21,
2016), https://goo.gl/JlMCst.
23
Transcript: ABC News Anchor David Muir Interviews President Trump, ABC
News (Jan. 25, 2017, 10:25 PM ET), https://goo.gl/NUzSpq.
24
Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27, 2017),
https://goo.gl/7Jzird.
11

was “establishing a new vetting measure to keep radical Islamic terrorists out of
the United States of America,” and that: “We don’t want them here.”25
50.

Section 3 of the Executive Order is entitled “Suspension of Issuance

of Visas and Other Immigration Benefits to Nationals of Countries of Particular
Concern.” Section 3(c) “suspends entry into the United States, as immigrants and
nonimmigrants” of persons from countries referred to in Section 217(a)(12) of the
INA [8 U.S.C. § 1187(a)(12)], that is: Iran, Iraq, Libya, Somalia, Sudan, Syria, and
Yemen.
51.

The majority of the population in each of these seven countries is

Muslim.
52.

Not a single fatal terrorist attack has been perpetrated in the United

States by a national of one of these seven countries since at least 1975.26 Other
countries whose nationals have perpetrated fatal terrorist attacks in the United
States are not part of the immigration ban.27
53.

Section 3(c) means that Lawful Permanent Residents, foreign students

enrolled in U.S. universities (including in Hawai‘i), individuals employed in the
United States on temporary work visas, and others must be halted at the border if
they arrive in the United States (in Hawai‘i or elsewhere) from one of the seven
designated countries, including if he or she leaves the country and tries to return.
Section 3(g) allows the Secretaries of State and Homeland Security to make
exceptions when they determine that doing so is “in the national interest.”
25

Sarah Pulliam Bailey, Trump signs order limiting refugee entry, says he will
prioritize Christian refugees, The Washington Post (Jan. 27, 2017),
https://goo.gl/WF2hmS.
26
Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on
Immigration, Cato Institute Blog (Jan. 25, 2017 3:31 PM ET),
https://goo.gl/BCv6rQ.
27
Scott Schane, Immigration Ban Is Unlikely to Reduce Terrorist Threat, Experts
Say, N.Y. Times (Jan. 28, 2017), https://goo.gl/MBvOTk.
12

54.

The Executive Order also provides for an expansion of the

immigration ban to nationals from additional countries. Section 3(d) directs the
Secretary of State to (within about 30 days) “request [that] all foreign
governments” provide the United States with information to determine whether a
person is a security threat. And, should any countries fail to comply, Section 3(e)
directs the Secretaries of Homeland Security and State to “submit to the President a
list of countries recommended for inclusion” in the ban from among any countries
who do not provide the information requested.
55.

Section 3(f) gives the Secretary of State and the Secretary of

Homeland Security further authority to “submit to the President the names of any
additional countries recommended for similar treatment” in the future.
56.

Section 5 of the Executive Order is entitled “Realignment of the U.S.

Refugee Admissions Program for Fiscal Year 2017.” Section 5(a) directs the
Secretary of State to “suspend the U.S. Refugee Admissions Program (USRAP) for
120 days.” Section 5(e) permits the Secretaries of State and Homeland Security to
admit individuals as refugees on a case-by-case basis, but only if they determine
that admission of the refugee is in the “national interest,” including “when the
person is a religious minority in his country of nationality facing religious
persecution.”
57.

Section 5(b) directs the Secretaries of State and Homeland Security,

“[u]pon resumption of USRAP admissions,” to “prioritize refugee claims made by
individuals on the basis of religious-based persecution, provided that the religion
of the individual is a minority religion in the individual’s country of nationality.”
In Section 5(c), President Trump “proclaim[s] that the entry of nationals of Syria
as refugees is detrimental to the interests of the United States and thus suspends
any such entry” indefinitely.

13

58.

The restrictions in Sections 3 and 5 of the Executive Order apply

whether or not a non-citizen poses any individualized threat of violence, or has any
connection to terrorist activities in any way.
59.

In a January 27, 2017 interview with Christian Broadcasting Network,

President Trump said that persecuted Christians would be given priority under the
Executive Order. He said (once again, falsely): “Do you know if you were a
Christian in Syria it was impossible, at least very tough to get into the United
States? If you were a Muslim you could come in, but if you were a Christian, it
was almost impossible and the reason that was so unfair, everybody was
persecuted in all fairness, but they were chopping off the heads of everybody but
more so the Christians. And I thought it was very, very unfair. So we are going to
help them.”28
60.

The day after signing the Executive Order, President Trump advisor

Rudolph Giuliani explained on television how the Executive Order came to be. He
said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me
up. He said, ‘Put a commission together. Show me the right way to do it
legally.’”29
C.

Effects of the Executive Order
61.

Upon issuance of the Executive Order, Defendants began detaining

people at U.S. airports who, but for the Executive Order, were legally entitled to
enter the United States. Some were also removed from the United States.
28

Brody File Exclusive: President Trump Says Persecuted Christians Will Be
Given Priority as Refugees, Christian Broadcasting Network (Jan. 27, 2017),
https://goo.gl/2GLB5q. A printout of this webpage is attached as Exhibit 7.
Additional pages including advertisements, reader comments, and other extraneous
material are omitted.
29
Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a
commission to do it ‘legally’, The Washington Post (Jan. 29, 2017),
https://goo.gl/Xog80h. A copy of this article is attached as Exhibit 8.
14

Estimates indicate that over 100 people were detained upon arrival at U.S.
airports.30
62.

Defendants have not afforded people an opportunity to apply for

asylum, withholding of removal, or other relief before removing them, and have
even prevented detained individuals from speaking with their attorneys.
63.

Among others, Defendants have detained and/or removed:
a.

Lawful permanent residents, including dozens at Dulles
International Airport in Virginia,31 and others at Los Angeles
International Airport who were pressured to sign Form I-407 to
relinquish their green cards;32

b.

People with special immigrant visas, including an Iraqi national
at John F. Kennedy International Airport who worked as an
interpreter for the U.S. Army in Iraq;33

c.

A doctor at the Cleveland Clinic with a valid work visa who
was trying to return home from vacation;34

d.

People with valid visas to visit family in the United States,
including a Syrian woman sent to Saudi Arabia after being

30

Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos
and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), https://goo.gl/OrUJEr.
31
See, e.g., Petition ¶ 2, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017).
32
Leslie Berestein Rojas et al., LAX immigration agents asks detainees to sign
away their legal residency status, attorneys say, Southern California Public Radio
News (Jan. 30, 2017), https://goo.gl/v6JoUC; Brenda Gazzar & Cynthia Washicko,
Thousands protest Trump’s immigration order at LAX, Los Angeles Daily News
(Jan. 29, 2017), https://goo.gl/1vA37M.
33
See, e.g., Petition 2, Darweesh v. Trump, No. 1:17-cv-00480 (E.D.N.Y. Jan. 28,
2017).
34
Jane Morice, Two Cleveland Clinic doctors vacationing in Iran detained in New
York, then released, Cleveland.com (Jan. 29, 2017), https://goo.gl/f0EGV3.
15

convinced by officials at O’Hare International Airport to sign
paperwork cancelling her visa.35
64.

People overseas were blocked from boarding flights to the United

States or told they could no longer come here. At a hearing in the U.S. District
Court for the Eastern District of Virginia on February 3, 2017, an attorney for the
Federal Government revealed that over 100,000 visas have been revoked since the
Executive Order was signed a week earlier on January 27.36 Those affected
included:
a.

People with valid student, work, or visitor visas;

b.

People who could seek asylum in the United States;

c.

Syrian refugees with visas and U.S. placements lined up,
including a family assisted by a church in Sheboygan,
Wisconsin;37

d.

Parents seeking to reunite with children they were forced to
leave behind, or have never met;38 and

e.

People caught in limbo because they cannot enter the United
States, return to their native country, or stay much longer where
they are on temporary visas.39

35

John Rogers, Longtime US residents, aspiring citizens caught up in ban,
StarTribune (Jan. 30, 2017 1:45 AM ET), https://goo.gl/eEPAuE.
36
Rachael Revesz, Donald Trump immigration ban: More than 100,000 visas
revoked after travel restrictions imposed on seven Muslim-majority countries, The
Independent (Feb. 3, 2017 1:24 PM ET), https://goo.gl/5KnCUh.
37
Families, students, scientists: Faces of the immigration ban, USA Today
Network (Jan. 31, 2017 5:35 AM ET), https://goo.gl/VKuhds.
38
Refugees Anticipate Family Reunions, Instead Endure Doubt, ABC News (Jan.
31, 2017 4:56 PM ET), https://goo.gl/3JT6iC.
39
Jamie Doward, US-bound migrants blocked from flying to JFK airport, The
Guardian (Jan. 28, 2017), https://goo.gl/pWu0NZ.
16

65.

Confusion, backlash, and habeas corpus litigation arose in the wake of

the Executive Order, including with regard to whether the Executive Order applied
to lawful permanent residents. Within the first 72 hours that the Executive Order
was in effect, Defendants reportedly changed their minds three times about
whether it did.40
66.

Hundreds of State Department officials signed a memorandum

circulated through the State Department’s “Dissent Channel” stating that the
Executive Order “runs counter to core American values” including
“nondiscrimination,” and that “[d]espite the Executive Order’s focus on them, a
vanishingly small number of terror attacks on U.S. soil have been committed by
foreign nationals” here on visas.41
67.

Likewise, Senators John McCain (R-AZ) and Lindsey Graham (R-SC)

stated: “This executive order sends a signal, intended or not, that America does not
want Muslims coming into our country.”42
68.

DHS Secretary Kelly issued a press release on Sunday, January 29,

2017, stating that: “In applying the provisions of the president’s executive order, I
hereby deem the entry of lawful permanent residents to be in the national
interest. Accordingly, absent the receipt of significant derogatory information

40

Evan Perez et al., Inside the confusion of the Trump executive order and travel
ban, CNN Politics (Jan. 30, 2017 11:29 AM ET), https://goo.gl/Z3kYEC. A
printed copy of this article is attached as Exhibit 9.
41
Jeffrey Gettleman, State Department Dissent Cable on Trump’s Ban Draws
1,000 Signatures, N.Y. Times (Jan. 31, 2017), https://goo.gl/svRdIw. A copy of
the Dissent Channel memorandum is attached as Exhibit 10.
42
Press Release, Senator John McCain, Statement By Senators McCain & Graham
On Executive Order On Immigration (Jan. 29, 2017), available at
https://goo.gl/EvHvmc.
17

indicating a serious threat to public safety and welfare, lawful permanent resident
status will be a dispositive factor in our case-by-case determinations.”43
69.

Secretary Kelly’s statement thus indicated that the Executive Order

does apply to lawful permanent residents from the designated countries, and only
the Secretary’s determination under Section 3(g) that admission of lawful
permanent residents, absent certain information reviewed on a case-by-case basis,
is in the national interest, allows them to enter.
70.

Then, on February 1, 2017, the White House issued a Memorandum

taking yet another position on green-card holders, now purporting to “clarify” that
such persons were never covered by Sections 3 and 5 of the Order.
71.

Because of the Executive Order, non-citizens from the seven

designated countries who are legally present in the United States cannot leave the
country for family, educational, religious, or business reasons if they wish to return.
72.

Among others, people planning to travel overseas on ummas, a

Muslim pilgrimage, are unsure whether they can make the trip.44
73.

Hawai‘i is home to numerous non-citizens from the seven designated

countries—legal permanent residents, foreign students, and temporary workers—
whose lives have now been upended by the Executive Order. Some non-citizens
have been forced to cancel or postpone travel plans. Others may be forced to
abandon their studies at Hawaii’s universities in order to be reunited with
immediate family members abroad.
74.

Conversely, nationals of the seven designated countries cannot

relocate to or even visit Hawai‘i for family, educational, religious, or business
43

Press Release, U.S. Department of Homeland Security, Statement By Secretary
John Kelly On The Entry Of Lawful Permanent Residents Into The United States
(Jan. 29, 2017), available at https://goo.gl/6krafi. A copy of this press release is
attached as Exhibit 11.
44
US-bound migrants blocked from flying to JFK airport, supra.
18

reasons. As a result, the Executive Order is blocking Hawai‘i residents—including
U.S. citizens—from reunifying with their families.
75.

Both citizens and non-citizens living in Hawai‘i are harmed by the

Executive Order.
76.

Although Mr. Elshikh, his wife, and their children are all American

citizens, and although Mr. Elshikh’s wife’s I-130 Petition was granted, the
Executive Order will prevent Mr. Elshikh’s mother-in-law from visiting her family
in Hawai‘i. She last visited the family in 2005, when she stayed for one month.
She has not met two of Mr. Elshikh’s children, and only Mr. Elshikh’s oldest child
remembers meeting her grandmother. The family is devastated.
77.

Mr. Elshikh’s children, all under twelve years of age, are deeply

affected by the Executive Order. President Trump’s Executive Order conveys to
them a message that their own country would discriminate against individuals who
share their ethnicity, including members of their own family, and who hold the
same religious beliefs.
78.

Members of Mr. Elshikh’s Mosque are also affected by the Executive

Order. Many are upset. Some are even fearful. Muslims in the Hawai‘i Islamic
community feel that the Executive Order targets Muslim citizens because of their
religious views and national origin. Mr. Elshikh believes that, as a result of the
ban, he and members of the Mosque will not be able to associate as freely with
those of other faiths.
79.

Mr. Elshikh feels that, as a result of the Executive Order, there is now

a favored and disfavored religion in Hawai‘i and the United States, i.e., that a
religion has been established.
80.

Many members of Mr. Elshikh’s Mosque have family and friends

living in the countries listed in the Executive Order. Because of the Executive
Order, they live in forced separation from their family and friends.
19

81.

Defendants are enforcing the Executive Order on Hawai‘i soil,

including at Honolulu and Kona International Airports.
82.

As a result of the Executive Order, the airport facilities provided by

Hawaii’s State Department of Transportation for international passengers coming
into Hawai‘i will be used by the federal government to carry out the unlawful acts
required by the Executive Order.
83.

As a result of the Executive Order, State universities and State

agencies cannot accept qualified applicants for open positions—as students,
researchers, post-docs, faculty members, or employees—if they are residents of
one of the seven designated countries. This contravenes policies at the State’s
universities and agencies to promote diversity and recruit talent from abroad.45
84.

Beyond universities and government entities, other employers within

the State cannot recruit and/or hire workers from the seven designated countries.
85.

The University of Hawai‘i and other State learning institutions depend

on the collaborative exchange of ideas, including among people of different
religions and national backgrounds. For this reason, the University of Hawai‘i has
study abroad or exchange programs in over thirty countries, and international
agreements for faculty collaboration with over 350 international institutions
spanning forty different countries. The Executive Order threatens such
educational collaboration and harms the ability of the University of Hawai‘i to
fulfill its educational mission.
45

See, e.g., State of Hawai‘i, Department of Human Resources Development,
Policy No. 601.001: Discrimination / Harassment-Free Workplace Policy (revised
Nov. 16, 2016), available at https://goo.gl/7q6yzJ; University of Hawai‘i, Mānoa,
Policy M1.100: Non-Discrimination and Affirmative Action Policy, available at
https://goo.gl/6YqVl8 (last visited Feb. 2, 2017 8:27 PM ET); see also, e.g.,
Campus Life: Diversity, University of Hawai‘i, Mānoa, https://goo.gl/3nF5C9 (last
visited Feb. 2, 2017 8:27 PM ET).
20

86.

The Executive Order is depressing international travel to and tourism

in Hawai‘i. Hawai‘i can no longer welcome tourists from the seven designated
countries. This directly harms Hawai‘i businesses and, in turn, the State’s revenue.
In 2015 alone, Hawai‘i welcomed over 6,800 visitors from the Middle East and
over 2,000 visitors from Africa.
87.

Even with respect to countries not currently targeted by the Executive

Order, there is a likely “chilling effect” on tourism to the United States and to
Hawai‘i. Non-citizen Muslims in the United States who would otherwise consider
taking vacations will be less likely to travel using airports, and thus less likely to
visit Hawai‘i. The Executive Order also contemplates an expansion of the
immigration ban and in fact authorizes the Secretaries of State and Homeland
Security to recommend additional countries for inclusion in the near future. This
likely instills fear and a disinclination to travel to the United States among
foreigners in other countries that President Trump has been hostile towards—i.e.,
residents of other Muslims countries, China, and Mexico.
88.

The Executive Order gives rise to a global perception that the United

States is an exclusionary country, and it dampens the appetite for international
travel here generally.
89.

A decrease in national and international tourism would have a severe

impact on Hawaii’s economy.
90.

The Executive Order also throttles the efforts of the State and its

residents to resettle and assist refugees. Refugees from numerous countries,
including Iraq, have resettled in Hawai‘i in recent years.46 While the State’s
refugee program is small, it is an important part of the State’s culture, and aiding
46

U.S. Department of Health & Human Servs., Office of Refugee Resettlement,
Overseas Refugee Arrival Data: Fiscal Years 2012-2015, available at
https://goo.gl/JcgkDM.
21

refugees is central to the mission of private Hawai‘i organizations like Catholic
Charities Hawai‘i and the Pacific Gateway Center.47 In late 2015, as other states
objected to the admission of Syrian refugees, Governor Ige issued a statement that
“slamming the door in their face would be a betrayal of our values.” Governor Ige
explained: “Hawai‘i and our nation have a long history of welcoming refugees
impacted by war and oppression. Hawai‘i is the Aloha State, known for its
tradition of welcoming all people with tolerance and mutual respect.”48 But as
long as the Executive Order prohibits refugee admissions, the State and its
residents are prevented from helping refugees resettle in Hawai‘i.
91.

In the event refugee admissions resume, the Executive Order

promotes the admission of Christian refugees and impedes the admission of
Muslim refugees. The Executive Order thus establishes a preference by the
Federal Government for Christianity and against Islam, despite the Establishment
Clauses of the Constitutions of the State of Hawai‘i and the United States.
92.

President Trump’s Executive Order is antithetical to Hawai‘i’s state

identity and spirit. For many in Hawai‘i, including State officials, the Executive
Order conjures up the memory of the Chinese Exclusion Acts and the imposition of
martial law and Japanese internment after the bombing of Pearl Harbor. As
Governor Ige expressed two days after President Trump issued the Executive
Order, “Hawai‘i has a proud history as a place immigrants of diverse backgrounds
can achieve their dreams through hard work. Many of our people also know all too
well the consequences of giving in to fear of newcomers. The remains of the
internment camp at Honouliuli are a sad testament to that fear. We must remain
47

See About: Our History, Catholic Charities Hawai‘i, https://goo.gl/deVBla (last
visited Feb. 2, 2017 8:28 PM ET); About: Mission, Pacific Gateway Center,
https://goo.gl/J8bN5k (last visited Feb. 2, 2017 8:29 PM ET).
48
Press Release, Governor of the State of Hawai‘i, Governor David Ige’s
Statement On Syrian Refugees (Nov. 16, 2015), available at https://goo.gl/gJcMIv.
22

true to our values and be vigilant where we see the worst part of history about to be
repeated.”49
CAUSES OF ACTION
COUNT I
(First Amendment – Establishment Clause)
93.

The foregoing allegations are realleged and incorporated by reference

herein.
94.

The Establishment Clause of the First Amendment prohibits the

Federal Government from officially preferring one religion over another.
95.

Sections 3 and 5 of the Executive Order, as well as Defendants’

statements regarding the Executive Order and their actions to implement it, are
intended to disfavor Islam and favor Christianity.
96.

Sections 3 and 5 of the Executive Order, as well as Defendants’

statements regarding the Executive Order and their actions to implement it, have
the effect of disfavoring Islam and favoring Christianity.
97.

Through their actions described in this Complaint, Defendants have

violated the Establishment Clause. Defendants’ violation inflicts ongoing harm
upon Mr. Elshikh, his family, and members of his Mosque, as well as other
Hawai‘i residents and the sovereign interests of the State of Hawai‘i.
COUNT II
(Fifth Amendment – Equal Protection)
98.

The foregoing allegations are realleged and incorporated by reference

herein.

49

Press Release, Governor of the State of Hawai‘i, Statement of Governor David
Ige On Immigration To The United States (Jan. 29, 2017), available at
https://goo.gl/62w1fh.
23

99.

The Due Process Clause of the Fifth Amendment prohibits the Federal

Government from denying equal protection of the laws, including on the basis of
religion and/or national origin, nationality, or alienage.
100. The Executive Order was motivated by animus and a desire to
discriminate on the basis of religion and/or national origin, nationality, or alienage.
101. The Executive Order differentiates between people based on their
religion and/or national origin, nationality, or alienage and is accordingly subject to
strict scrutiny. It fails that test, because it is over- and under-inclusive in
restricting immigration for security reasons, and the statements by President Trump
and his advisors provide direct evidence of the Executive Order’s discriminatory
motivations.
102. For the same reason, the Executive Order is not rationally related to a
legitimate government interest.
103. Sections 3 and 5 of the Executive Order, as well as Defendants’
statements regarding the Executive Order and their actions to implement it,
discriminate against individuals based on their religion and/or national origin,
nationality, or alienage without lawful justification.
104. Through their actions described in this Complaint, Defendants have
violated the Equal Protection guarantees of the Fifth Amendment. Defendants’
violation inflicts ongoing harm upon Mr. Elshikh, his family, and members of his
Mosque, as well as other Hawai‘i residents and the sovereign interests of the State
of Hawai‘i.
COUNT III
(Fifth Amendment – Substantive Due Process)
105. The foregoing allegations are realleged and incorporated by reference
herein.

24

106. The right to international travel is protected by the Due Process
Clause of the Fifth Amendment.
107. The Executive Order curtails that right, without any legal justification.
108. Through their actions described in this Complaint, Defendants have
violated the Substantive Due Process guarantees of the Fifth Amendment.
Defendants’ violation inflicts ongoing harm upon Mr. Elshikh, his family, and
members of his Mosque, as well as other Hawai‘i residents and the sovereign
interests of the State of Hawai‘i.
COUNT IV
(Fifth Amendment – Procedural Due Process)
109. The foregoing allegations are realleged and incorporated by reference
herein.
110. The Due Process Clause of the Fifth Amendment prohibits the Federal
Government from depriving individuals of liberty interests without due process of
law.
111. Non-citizens, including lawful permanent residents and nonimmigrants holding valid visas, have a liberty interest in leaving and entering the
country, and in being free from unlawful detention.
112. The Due Process Clause establishes a minimum level of procedural
protection before those liberty interests can be deprived. A non-citizen must be
given an opportunity to present her case effectively, which includes a hearing and
some consideration of individual circumstances.
113. In addition, where Congress has granted statutory rights and
authorized procedures applicable to arriving and present non-citizens, rights under
the Due Process Clause attach to those statutory rights. The Executive Order
deprives non-citizens of those statutory rights.

25

114. For instance, Sections 3 and 5 of the Executive Order, and
Defendants’ actions implementing the Executive Order, deprive non-citizens
arriving in the United States, including in Hawai‘i, of their statutory rights to apply
for asylum and withholding of removal in the United States.
115.

Through their actions described in this Complaint, Defendants have

violated the Procedural Due Process guarantees of the Fifth Amendment.
Defendants’ violation inflicts ongoing harm upon Mr. Elshikh, his family, and
members of his Mosque, as well as other Hawai‘i residents and the sovereign
interests of the State of Hawai‘i.
COUNT V
(Religious Freedom Restoration Act)
116. The foregoing allegations are realleged and incorporated by reference
herein.
117. The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §
2000bb-1(a), prohibits the Federal Government from substantially burdening the
exercise of religion, even if the burden results from a rule of general applicability.
118. Section 3 of the Executive Order and Defendants’ actions to
implement the Executive Order impose a substantial burden on the exercise of
religion.
119. Among other injuries, non-citizens detained upon arrival in the United
States are hindered in or prevented from exercising their religion while in detention.
Non-citizens currently in the United States are prevented from travelling abroad on
religious trips, including pilgrimages or trips to attend religious ceremonies
overseas. Non-citizens currently outside the United States cannot enter the United
States to reunite with their families or religious communities. And religious
communities in the United States cannot welcome visitors, including religious
workers, from designated countries.
26

120. Through their actions described in this Complaint, Defendants have
violated the RFRA. Defendants’ violation inflicts ongoing harm upon Mr. Elshikh,
his family, and members of his Mosque, as well as other Hawai‘i residents and the
sovereign interests of the State of Hawai‘i.
COUNT VI
(Substantive Violation of the Administrative Procedure Act through
Violations of the Constitution, Immigration and Nationality Act, and
Arbitrary and Capricious Action)
121. The foregoing allegations are realleged and incorporated by reference
herein.
122. The APA requires courts to hold unlawful and set aside any agency
action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”; “contrary to constitutional right, power, privilege, or
immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right.” 5 U.S.C. § 706(2)(A)-(C).
123. In enacting and implementing Sections 3 and 5 of the Executive Order,
Defendants have acted contrary to the Establishment Clause and Fifth Amendment
of the United States Constitution.
124. In enacting and implementing Sections 3 and 5 of the Executive Order,
Defendants have acted contrary to the INA, the RFRA, and the United Nations
Protocol Relating to the Status of Refugees. Defendants have exceeded their
statutory authority, engaged in nationality- and religion-based discrimination, and
failed to vindicate statutory rights guaranteed by the INA.
125. Further, in enacting and implementing Sections 3 and 5 of the
Executive Order, Defendants have acted arbitrarily and capriciously. Among other
arbitrary actions and omissions, Defendants have offered no explanation for the
countries that are and are not included within the scope of the Executive Order.

27

The Executive Order purports to protect the country from terrorism, but sweeps in
millions of people who have absolutely no connection to terrorism. And while
Defendants have reversed course in their application of the Executive Order to
lawful permanent residents, Defendants again acted without explanation, and have
yet to explain how all other people with valid visas to enter the country pose a
security threat.
126. Through their actions described in this Complaint, Defendants have
violated the substantive requirements of the APA. Defendants’ violation inflicts
ongoing harm upon Mr. Elshikh, his family, and members of his Mosque, as well
as other Hawai‘i residents and the sovereign interests of the State of Hawai‘i.
COUNT VII
(Procedural Violation of the Administrative Procedure Act)
127. The foregoing allegations are realleged and incorporated by reference
herein.
128. The APA requires courts to hold unlawful and set aside any agency
action taken “without observance of procedure required by law.” 5 U.S.C. §
706(2)(D).
129. The Departments of State and Homeland Security are “agencies”
under the APA. See 5 U.S.C. § 551(1).
130. The APA requires that agencies follow rulemaking procedures before
engaging in action that impacts substantive rights. See 5 U.S.C. § 553.
131. In implementing Sections 3 and 5 of the Executive Order, federal
agencies have changed the substantive criteria by which individuals from the seven
designated countries may enter the United States. This, among other actions by
Defendants, impacts substantive rights.
132. Defendants did not follow the rulemaking procedures required by the
APA in enacting and implementing the Executive Order.
28

133. Through their actions described in this Complaint, Defendants have
violated the procedural requirements of the APA. Defendants’ violation inflicts
ongoing harm upon Mr. Elshikh, his family, and members of his Mosque, as well
as other Hawai‘i residents and the sovereign interests of the State of Hawai‘i.
PRAYER FOR RELIEF
134. WHEREFORE, Plaintiffs pray that the Court:
a.

Declare that Sections 3(c), 5(a)-(c), and 5(e) of President
Trump’s Executive Order are unauthorized by, and contrary to,
the Constitution and laws of the United States;

b.

Enjoin Defendants from implementing or enforcing Sections
3(c), 5(a)-(c), and 5(e) across the nation;

c.

Pursuant to Federal Rule of Civil Procedure 65(b)(2), set an
expedited hearing within fourteen (14) days to determine
whether the Temporary Restraining Order should be extended;
and

d.

Award such additional relief as the interests of justice may
require.

DATED:

Honolulu, Hawai‘i, February 13, 2017.
Respectfully submitted,

/s/ Neal K. Katyal

/s/ Douglas S. Chin

NEAL K. KATYAL**
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY**
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
29

HOGAN LOVELLS US LLP
*Pro Hac Vice Applications
Forthcoming
**Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i

30