State of Hawaii v. Trump

Filing 64

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (SECOND) against John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America, filed by State of Hawaii, Ismail Elshikh. (Attachments: # 1 Exhibit 1 - Copy of Executive Order dated 3/6/2017, # 2 Exhibit 2 - Copy of Executive Order dated 1/27/2017, # 3 Exhibit 3 - Collection of relevant Data for Hawaii, # 4 Exhibit 4 - Tables for fiscal years 2005-2015, # 5 Exhibit 5 - Copy of table of contents and executive summary, # 6 Exhibit 6 - Copy of press release, # 7 Exhibit 7 - Copy of transcript, # 8 Exhibit 8 - Copy of Washington Post Article, # 9 Exhibit 9 - Copy of this NBC News article, # 10 Exhibit 10 - Copy of the draft DHS report, # 11 Exhibit 11 - Final version of DHS report, # 12 Exhibit 12 - Copy of NBC News article, # 13 Exhibit 13 - Copy of Dissent Channel memorandum, # 14 Exhibit 14 - Copy of DHS Q&A, # 15 Certificate of Service)(Katyal, Neal) Docket title text added on 3/9/2017 (ecs, ).

3/7/2017

Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States | Homeland Security

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Q&A: Protecting the
Nation From Foreign
Terrorist Entry To The
United States
Release Date:  March 6, 2017
March 6, 2017 11:30 a.m. EST
Office of Public Affairs
Contact: 202-282-8010

Q1. Who is subject to the
suspension of entry under the
Executive Order?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran,
Libya, Somalia, and Yemen, who are outside the United States
and who did not have a valid visa at 5 p.m. Eastern Standard
Time on January 27, 2017, and do not have a valid visa on the
effective date of this order are not eligible to enter the United
States while the temporary suspension remains in effect. Thus
any individual who had a valid visa either on January 27, 2017
(prior to 5:00 PM) or holds a valid visa on the effective date of the
Executive Order is not barred from seeking entry.

EXHIBIT 14

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Q2. Will “in-transit” travelers
within the scope of the Executive
Order be denied entry into the
United States and returned to
their country of origin?
Those individuals who are traveling on valid visas and arrive at a
U.S. port of entry will still be permitted to seek entry into the
United States.  All foreign nationals traveling with a visa must
continue to satisfy all requirements for entry, including
demonstrating that they are admissible.  Additional information
on applying for admission to the United States is available on
CBP.gov. (https://www.cbp.gov/travel/international-visitors/applyingadmission-united-states)

Q3. I am a national from one of
the six affected countries
currently overseas and in
possession of a valid visa, but I
have no prior travel to the
United States. Can I travel to the
United States?
Per the Executive Order, foreign nationals from Sudan, Syria, Iran,
Libya, Somalia, and Yemen who have valid visas will not be
affected by this Executive Order.  No visas will be revoked solely
based on this Executive Order.

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Q4. I am presently in the United
States in possession of a valid
single entry visa but I am a
national of one of the six
impacted countries.  Can I travel
abroad and return to the United
States?
Regardless of the Executive Order, your visa is not valid for
multiple entries into the Unites States. While the Executive Order
does not apply to those within the United States and your travel
abroad is not limited, a valid visa or other document permitting
you to travel to and seek admission to the United States is still
required for any subsequent entry to the United States.

Q5. I am presently in the United
States in possession of a valid
multiple entry visa but am a
national of one of the six
affected countries, can I travel
abroad and return to the United
States?
Yes. Individuals within the United States with valid multiple entry
visas on the effective date of the order are eligible for travel to
and from the United States, provided the visa remains valid and
the traveler is otherwise admissible.  All foreign nationals
traveling with a visa must satisfy all admissibility requirements
for entry.  Additional information on applying for admission to
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the United States is available on CBP.gov.
(https://www.cbp.gov/travel/international-visitors/applying-admission-unitedstates)

Q6. I am from one of the six
countries, currently in the
United States in possession of a
valid visa and have planned
overseas travel.  My visa will
expire while I am overseas, can I
return to the United States?
Travelers must have a valid visa to travel to the United States,
regardless of the Executive Order.  Travelers who do not have a
valid visa due to its expiration while abroad must obtain a new
valid visa prior to returning to the United States. 

Q7. Will the Department of
Homeland Security (DHS) and
the Department of State (DOS)
be revoking the visas of persons
ineligible to travel under the
revised Executive Order?
Visas will not be revoked solely as a result of the Executive Order. 
The Department of State has broad authority under Section 221(i)
of the Immigration and Nationality Act to revoke visas. 

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Q8. What is the process for
overseas travelers affected by
the Executive Order to request a
waiver?
Waivers for overseas travelers without a valid U.S. visa will be
adjudicated by the Department of State in conjunction with a visa
application.

Q9. How are returning refugees
and asylees affected by the
Executive Order?
Returning refugees and asylees, i.e., individuals who have already
been granted asylum or refugee status in the United States, are
explicitly excepted from this Executive Order. As such, they may
continue to travel consistent with existing requirements.

Q10. Are first-time arrival
refugees with valid /travel
documents allowed to travel to
the United States?
Yes, but only refugees, regardless of nationality, whose travel was
already formally scheduled by the Department of State, are
permitted to travel to the United States and seek admission.  The
Department of State will have additional information.

Q11. Will unaccompanied minors
within the scope of the Executive
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Order be denied boarding and or
denied entry into the United
States?
The Executive Order applies to those who do not have valid visas. 
Any individuals, including children, who seek entry to the United
States must have a valid visa (or other approved travel
document) before travel to the United States. The Secretary of
State may issue a waiver on a case-by-case basis when in the
national interest of the United States. With such a waiver, a visa
may be issued.  

Q12. Is DHS complying with all
court orders?
DHS is complying, and will continue to comply, with all court
orders in effect.

Q13. When will the Executive
Order be implemented?
The Executive Order is effective at 12:01 A.M., Eastern Standard
Time, on March 16, 2017.

Q14. Will the Executive Order
impact Trusted Traveler Program
membership?
No.  Currently, CBP does not have reciprocal agreements for a
Trusted Traveler Program with any of the countries designated in
the Executive Order.

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Q15. When will CBP issue
guidance to both the field and
airlines regarding the Executive
Order?
CBP will issue guidance and contact stakeholders to ensure
timely implementation consistent with the terms of the Executive
Order.

Q16. Will first-time arrivals with
valid immigrant visas be allowed
to travel to the U.S.?
Yes. Individuals holding valid visas on the effective date of the
Executive Order or on January 27, 2017 prior to 5:00 PM do not
fall within the scope of the Order.

Q17. Does this affect travelers at
all ports of entry?
Yes, this Executive Order applies to travelers who are applying for
entry into the United States at any port of entry—air, land, or sea
—and includes preclearance locations.

Q18. What does granting a
waiver to the Executive Order
mean? How are waivers applied
to individual cases?
Per the Executive Order, the Departments of Homeland Security
and State can review individual cases and grant waivers on a
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case-by-case basis if a foreign national demonstrates that his or
her entry into the United States is in the national interest, will not
pose a threat to national security, and that denying entry during
the suspension period will cause undue hardship.

Q19. Does “from one of the six
countries” mean citizen,
national, or born in?
The Executive Order applies to both nationals and citizens of the
six countries. 

Q20. How does the lawsuit/stay
affect DHS operations in
implementing this Executive
Order?
Questions regarding the application of specific federal court
orders should be directed to the Department of Justice.

Q21. Will nationals of the six
countries with valid green cards
(lawful permanent residents of
the United States) be allowed to
return to the United States?
Per the Executive Order, the suspension of entry does not apply
to lawful permanent residents of the United States.  

Q22. Can a dual national who
holds nationality with one of the
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six designated countries
traveling with a passport from
an unrestricted country travel to
the United States?
The Executive Order exempts from its scope any dual national of
one of the six countries when the individual is traveling on a
passport issued by a different non-designated country.

Q23. Can a dual national who
holds nationality with one of the
six designated countries and is
currently overseas, apply for an
immigrant or nonimmigrant visa
to the United States?
Please contact the Department of State for information about
how the Executive Order applies to visa applicants.

Q24. Are international students,
exchange visitors, and their
dependents from the six
countries (such as F, M, or J visa
holders) included in the
Executive Order? What kind of
guidance is being given to
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foreign students from these
countries legally in the United
States?
The Executive Order does not apply to individuals who are within
the United States on the effective date of the Order or to those
individuals who hold a valid visa. Visas which were provisionally
revoked solely as a result of the enforcement of Executive Order
13769 are valid for purposes of administering this Executive
Order. Individuals holding valid F, M, or J visas may continue to
travel to the United States on those visas if they are otherwise
valid.
Please contact the State Department for information about how
the Executive Order applies to visa applicants.

Q25. What happens to
international students, exchange
visitors or their dependents
from the six countries, such as F,
M or J visa holders if their visa
expires while the Executive
Order is in place and they have to
depart the country?
The Executive Order does not affect F, M, or J visa holders if they
currently have a valid visa on the effective date or held a valid
visa on January 27, 2017 prior to the issuance of the Executive
Order. With that said, travelers must have a valid visa to travel to
the United States, regardless of the Executive Order.  Travelers
whose visa expires after the effective date of the Executive Order
must obtain a new, valid visa to return to the United States. 
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Q26. Can U.S. Citizenship and
Immigration Services (USCIS)
continue refugee interviews?
The Departments of Homeland Security and State will conduct
interviews as appropriate and consistent with the Executive
Order. However, the Executive Order suspends decisions on
applications for refugee status, unless the Secretary of Homeland
Security and the Secretary of State jointly determine, on a caseby-case basis, that the entry of an individual as a refugee is in the
national interest and would not pose a threat to the security or
welfare of the United States.

Q27. Can the exception for
refugee admission be used for
Refugee/Asylee Relative
Petitions (Form I-730) cases
where a family member is
requesting a beneficiary follow
to join? 
No. Individuals who already have valid visas or travel documents
that permit them to travel to the United States are exempt from
the Executive Order. To the extent that an individual does not yet
have such documents, please contact the Department of State.

Q28. Does the Executive Order
apply to those currently being

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adjudicated for naturalization or
adjustment of status?
USCIS will continue to adjudicate Applications for Naturalization
(Form N-400) and Applications to Register Permanent Residence
or Adjust Status (Form I-485) and grant citizenship consistent
with existing practices.

Q29. Will landed immigrants of
Canada affected by the Executive
Order be eligible for entry to the
United States?
Landed immigrants of Canada who hold passports from one of
the six countries are eligible to apply for a visa, and coordinate a
waiver, at a location within Canada.

Q30. Has CBP issued clear
guidance to CBP officers at ports
of entry regarding the Executive
Order?
CBP has and will continue to issue any needed guidance to the
field with respect to this Executive Order.

Q31. What coordination is being
done between CBP and the
carriers?
CBP has been and will remain in continuous communication with
the airlines through CBP regional carrier liaisons. In addition, CBP
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will hold executive level calls with airlines in order to provide
guidance, answer questions, and address concerns.

Q32. What additional screening
will nationals of restricted
countries (as well as any visa
applications) undergo as a result
of the Executive Order?
In making admission and visa eligibility determinations, DHS and
DOS will continue to apply all appropriate security vetting
procedures.

Q33. Why is a temporary
suspension warranted?
The Executive Order signed on March 6, 2017, allows for the
proper review and establishment of standards to prevent terrorist
or criminal infiltration by foreign nationals.  The Executive Order
protects the United States from countries compromised by
terrorism and ensures a more rigorous vetting process. Protecting
the American people is the highest priority of our Government
and this Department.
Congress and the Obama Administration designated these six
countries as countries of concern due to the national security
risks associated with their instability and the prevalence of
terrorist fighters in their territories.The conditions in the six
designated countries present a recognized threat, warranting
additional scrutiny of their nationals seeking to travel to and
enter the United States.  In order to ensure that the U.S.
Government can conduct a thorough and comprehensive analysis
of the national security risks, the Executive Order imposes a 90day suspension on entry to the United States of nationals of
those countries.
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Based on commitments from the Government of Iraq, the
suspension of entry in this Executive Order will not apply to
nationals of Iraq. Iraq has taken steps to increase their
cooperation with the United States in the vetting of Iraqi
nationals and as such it was determined that a temporary
suspension is not warranted.
DHS will faithfully execute the immigration laws and the
President’s Executive Order, and will treat all of those we
encounter humanely and with professionalism.

Q34. Why is a suspension of the
refugee program warranted?
Some of those who have entered the United States as refugees
have also proved to be threats to our national security.  For
example, in October 2014, an individual admitted to the United
States as a refugee from Somalia, and who later became a
naturalized U.S. citizen was sentenced to 30 years in prison for
attempting to use a weapon of mass destruction in connection
with a plot to set off a bomb at a Christmas tree-lighting
ceremony in Portland, Oregon.  The Federal Bureau of
Investigation has reported that approximately 300 persons who
entered the United States as refugees are currently the subjects
of counterterrorism investigations.

Q35. How were the six countries
designated in the Executive
Order selected?
The six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen,
had already been identified as presenting concerns about
terrorism and travel to the United States.Specifically, the
suspension applies to countries referred to in, or designated
under—except Iraq—section 217(a)(12) of the INA, 8 U.S.C. §
1187(a)(12).In that provision Congress restricted use of the Visa
Waiver Program by dual nationals of, and aliens recently present
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in, (A) Syria and Iraq, (B) any country designated by the Secretary
of State as a state sponsor of terrorism (currently Iran, Syria, and
Sudan), and (C) any other country designated as a country of
concern by the Secretary of Homeland Security, in consultation
with the Secretary of State and the Director of National
Intelligence.In 2016, the former Secretary of Homeland Security
designated Libya, Somalia, and Yemen as additional countries of
concern regarding aliens recently present in those countries.
For the purposes of this Executive Order, although Iraq has been
previously identified, based on commitments from the
Government of Iraq, the suspension of entry in this Executive
Order will not apply to nationals of Iraq. However, those who are
dual nationals of Iraq and aliens recently present in Iraq continue
to have restricted use of the Visa Waiver Program.
On the basis of negotiations that have taken place between the
Government of Iraq and the U.S. Department of State in the last
month, Iraq will increase cooperation with the U.S. Government
on the vetting of its citizens applying for a visa to travel to the
United States.As such it was determined that a temporary
suspension with respect to nationals of Iraq is not warranted at
this time.

Q36. Why was Iraq treated
differently in this Executive
Order?
The close cooperative relationship between the United States
and the democratically-elected Iraqi government, the strong U.S.
diplomatic presence in Iraq, the significant presence of U.S. forces
in Iraq, and Iraq’s commitment to combat ISIS justify different
treatment.In particular, those Iraqi government forces that have
fought to regain more than half of the territory previously
dominated by ISIS have earned special status.In addition, since
Executive Order 13769 was issued, the Iraqi government has
expressly undertaken steps to provide additional information
about its citizens for purposes of our immigration
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decisions.Accordingly, it is no longer necessary to include Iraq in
the temporary suspension applicable to the other six countries,
but visa applications and applications for admission to the
United States by Iraqi nationals will be subjected to additional
scrutiny to determine if they have connections with ISIS or other
terrorist organizations.

Q37. Are Iraqi nationals subject
to the Executive Order?  Will
they require a waiver to travel to
the United States?
This Executive Order does not presently suspend the entry of
nationals of Iraq.  However, all travelers must have a valid travel
document in order to travel to the United States. Admissibility
will be determined by a CBP officer upon arrival at a Port of Entry.
Please contact the Department of State for information related to
visa eligibility and application.
Topics:  Border Security (/topics/border-security) , Homeland Security Enterprise
(/topics/homeland-security-enterprise) , Immigration Enforcement (/topics/immigrationenforcement)

Keywords:  immigration (/keywords/immigration) , immigration enforcement
(/keywords/immigration-enforcement)

Last Published Date: March 6, 2017

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