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, ).

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Federal Register
Vol. 82, No. 20
Wednesday, February 1, 2017

Title 3—

Executive Order 13769 of January 27, 2017

The President

Protecting the Nation From Foreign Terrorist Entry Into the
United States
By the authority vested in me as President by the Constitution and laws
of the United States of America, including the Immigration and Nationality
Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States
Code, and to protect the American people from terrorist attacks by foreign
nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting
individuals with terrorist ties and stopping them from entering the United
States. Perhaps in no instance was that more apparent than the terrorist
attacks of September 11, 2001, when State Department policy prevented
consular officers from properly scrutinizing the visa applications of several
of the 19 foreign nationals who went on to murder nearly 3,000 Americans.
And while the visa-issuance process was reviewed and amended after the
September 11 attacks to better detect would-be terrorists from receiving
visas, these measures did not stop attacks by foreign nationals who were
admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in
terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement
program. Deteriorating conditions in certain countries due to war, strife,
disaster, and civil unrest increase the likelihood that terrorists will use
any means possible to enter the United States. The United States must
be vigilant during the visa-issuance process to ensure that those approved
for admission do not intend to harm Americans and that they have no
ties to terrorism.
In order to protect Americans, the United States must ensure that those
admitted to this country do not bear hostile attitudes toward it and its
founding principles. The United States cannot, and should not, admit those
who do not support the Constitution, or those who would place violent
ideologies over American law. In addition, the United States should not
admit those who engage in acts of bigotry or hatred (including ‘‘honor’’
killings, other forms of violence against women, or the persecution of those
who practice religions different from their own) or those who would oppress
Americans of any race, gender, or sexual orientation.

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Sec. 2. Policy. It is the policy of the United States to protect its citizens
from foreign nationals who intend to commit terrorist attacks in the United
States; and to prevent the admission of foreign nationals who intend to
exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits
to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director
of National Intelligence, shall immediately conduct a review to determine
the information needed from any country to adjudicate any visa, admission,
or other benefit under the INA (adjudications) in order to determine that
the individual seeking the benefit is who the individual claims to be and
is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary
of State and the Director of National Intelligence, shall submit to the President

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a report on the results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security’s determination of
the information needed for adjudications and a list of countries that do
not provide adequate information, within 30 days of the date of this order.
The Secretary of Homeland Security shall provide a copy of the report
to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during
the review period described in subsection (a) of this section, to ensure
the proper review and maximum utilization of available resources for the
screening of foreign nationals, and to ensure that adequate standards are
established to prevent infiltration by foreign terrorists or criminals, pursuant
to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the
immigrant and nonimmigrant entry into the United States of aliens from
countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12),
would be detrimental to the interests of the United States, and I hereby
suspend entry into the United States, as immigrants and nonimmigrants,
of such persons for 90 days from the date of this order (excluding those
foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the United Nations, and G–1, G–2,
G–3, and G–4 visas).
(d) Immediately upon receipt of the report described in subsection (b)
of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply
such information to start providing such information regarding their nationals
within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section
expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended
for inclusion on a Presidential proclamation that would prohibit the entry
of foreign nationals (excluding those foreign nationals traveling on diplomatic
visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the
United Nations, and G–1, G–2, G–3, and G–4 visas) from countries that
do not provide the information requested pursuant to subsection (d) of
this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of
this section, the Secretary of State or the Secretary of Homeland Security
may submit to the President the names of any additional countries recommended for similar treatment.

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(g) Notwithstanding a suspension pursuant to subsection (c) of this section
or pursuant to a Presidential proclamation described in subsection (e) of
this section, the Secretaries of State and Homeland Security may, on a
case-by-case basis, and when in the national interest, issue visas or other
immigration benefits to nationals of countries for which visas and benefits
are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the
President a joint report on the progress in implementing this order within
30 days of the date of this order, a second report within 60 days of the
date of this order, a third report within 90 days of the date of this order,
and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the
Director of National Intelligence, and the Director of the Federal Bureau
of Investigation shall implement a program, as part of the adjudication
process for immigration benefits, to identify individuals seeking to enter
the United States on a fraudulent basis with the intent to cause harm,
or who are at risk of causing harm subsequent to their admission. This
program will include the development of a uniform screening standard
and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not

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used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a
process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions
to the national interest; and a mechanism to assess whether or not the
applicant has the intent to commit criminal or terrorist acts after entering
the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary
of State, the Director of National Intelligence, and the Director of the Federal
Bureau of Investigation, shall submit to the President an initial report on
the progress of this directive within 60 days of the date of this order,
a second report within 100 days of the date of this order, and a third
report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal
Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary
of State, in conjunction with the Secretary of Homeland Security and in
consultation with the Director of National Intelligence, shall review the
USRAP application and adjudication process to determine what additional
procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States,
and shall implement such additional procedures. Refugee applicants who
are already in the USRAP process may be admitted upon the initiation
and completion of these revised procedures. Upon the date that is 120
days after the date of this order, the Secretary of State shall resume USRAP
admissions only for nationals of countries for which the Secretary of State,
the Secretary of Homeland Security, and the Director of National Intelligence
have jointly determined that such additional procedures are adequate to
ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State,
in consultation with the Secretary of Homeland Security, is further directed
to make changes, to the extent permitted by law, 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. Where necessary and appropriate, the Secretaries
of State and Homeland Security shall recommend legislation to the President
that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim
that the entry of nationals of Syria as refugees is detrimental to the interests
of the United States and thus suspend any such entry until such time
as I have determined that sufficient changes have been made to the USRAP
to ensure that admission of Syrian refugees is consistent with the national
interest.

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(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby
proclaim that the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States, and thus suspend
any such entry until such time as I determine that additional admissions
would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security
may jointly determine to admit individuals to the United States as refugees
on a case-by-case basis, in their discretion, but only so long as they determine
that the admission of such individuals as refugees is in the national interest—
including when the person is a religious minority in his country of nationality
facing religious persecution, when admitting the person would enable the
United States to conform its conduct to a preexisting international agreement,
or when the person is already in transit and denying admission would
cause undue hardship—and it would not pose a risk to the security or
welfare of the United States.

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(f) The Secretary of State shall submit to the President an initial report
on the progress of the directive in subsection (b) of this section regarding
prioritization of claims made by individuals on the basis of religious-based
persecution within 100 days of the date of this order and shall submit
a second report within 200 days of the date of this order.

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(g) It is the policy of the executive branch that, to the extent permitted
by law and as practicable, State and local jurisdictions be granted a role
in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.
To that end, the Secretary of Homeland Security shall examine existing
law to determine the extent to which, consistent with applicable law, State
and local jurisdictions may have greater involvement in the process of
determining the placement or resettlement of refugees in their jurisdictions,
and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds
of Inadmissibility. The Secretaries of State and Homeland Security shall,
in consultation with the Attorney General, consider rescinding the exercises
of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism
grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System.
(a) The Secretary of Homeland Security shall expedite the completion and
implementation of a biometric entry-exit tracking system for all travelers
to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President
periodic reports on the progress of the directive contained in subsection
(a) of this section. The initial report shall be submitted within 100 days
of the date of this order, a second report shall be submitted within 200
days of the date of this order, and a third report shall be submitted within
365 days of the date of this order. Further, the Secretary shall submit
a report every 180 days thereafter until the system is fully deployed and
operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately
suspend the Visa Interview Waiver Program and ensure compliance with
section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals
seeking a nonimmigrant visa undergo an in-person interview, subject to
specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of
appropriations, the Secretary of State shall immediately expand the Consular
Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making
language training at the Foreign Service Institute available to Fellows for
assignment to posts outside of their area of core linguistic ability, to ensure
that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all
nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with
respect to validity period and fees, as required by sections 221(c) and 281
of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country
does not treat United States nationals seeking nonimmigrant visas in a
reciprocal manner, the Secretary of State shall adjust the visa validity period,
fee schedule, or other treatment to match the treatment of United States
nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent
with the American people, and to more effectively implement policies and
practices that serve the national interest, the Secretary of Homeland Security,
in consultation with the Attorney General, shall, consistent with applicable
law and national security, collect and make publicly available within 180
days, and every 180 days thereafter:

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(i) information regarding the number of foreign nationals in the United
States who have been charged with terrorism-related offenses while in
the United States; convicted of terrorism-related offenses while in the
United States; or removed from the United States based on terrorismrelated activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order
or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United
States who have been radicalized after entry into the United States and
engaged in terrorism-related acts, or who have provided material support
to terrorism-related organizations in countries that pose a threat to the
United States, since the date of this order or the last reporting period,
whichever is later; and
(iii) information regarding the number and types of acts of gender-based
violence against women, including honor killings, in the United States
by foreign nationals, since the date of this order or the last reporting
period, whichever is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General,
including information on the immigration status of foreign nationals
charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this
order, provide a report on the estimated long-term costs of the USRAP
at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or

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(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.

THE WHITE HOUSE,
January 27, 2017.
[FR Doc. 2017–02281
Filed 1–31–17; 11:15 am]

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