International Refugee Assistance Project et al v. Trump et al

Filing 226

Correspondence re: Motion to Clarify/ Modify (Attachments: # 1 Exhibit Motion to Clarify/ Modify)(Jadwat, Omar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

Plaintiffs,

v.

DONALD TRUMP, et al,

Defendants.

Civil Action No.: 8:17-CV-00361-TDC

PLAINTIFFS’ MOTION TO CLARIFY OR
MODIFY PRELIMINARY INJUNCTION

On October 17, 2017, this Court preliminarily enjoined Section 2 of Presidential
Proclamation 9645, except with respect to (a) the provisions addressing North Korea and
Venezuela, and (b) individuals lacking a credible claim of a bona fide relationship with a person
or entity in the United States, “as defined in the Court’s Memorandum Opinion.” Order, Dkt.
No. 220.

While Plaintiffs respectfully reserve their objection to the entirety of the latter

exception, they submit this motion for the narrow purpose of seeking clarification (or, as
necessary, modification) of the Court’s definition of “bona fide relationship” with respect to
clients of organizations like Plaintiffs IRAP and HIAS. 1
The Court’s analysis in its October 17 opinion indicated that the exception for those
lacking bona fide relationships tracks the Supreme Court’s partial stay of the earlier injunctions
in this case. Order at 88 (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088
(2017)). The Court noted that the Supreme Court had stayed the Ninth Circuit’s determination
that a refugee’s formal assurance of resettlement assistance from an organization in the United
States was, itself, a bona fide relationship with a United States entity, such that the injunction
prevented the application of Section 6’s ban to that refugee. Id. Relying on that decision, this
Court stated that “clients of IRAP and HIAS, and those similarly situated, are not covered by the
injunction absent a separate bona fide relationship as defined above.” Id.
Plaintiffs respectfully ask the Court to clarify that its reference to a “separate bona fide
relationship as defined above” includes organization-client relationships that are not solely based

1

This Court retains jurisdiction to resolve this motion notwithstanding the Government’s filing
of a notice of appeal. Dixon v. Edwards, 290 F.3d 699, 709 & n.14 (4th Cir. 2002); Lytle v.
Griffith, 240 F.3d 404, 407-08 & n.2 (4th Cir. 2001). Doing so will “aid[] in [the] appeal” by
clarifying the scope of the dispute between the parties. Id.
1

on a refugee assurance and otherwise meet the standard set out by IRAP, 137 S. Ct. at 2088. 2
That is consistent with this Court’s reasoning and the Supreme Court’s ruling, which stayed the
previous injunction only “with respect to refugees covered by a formal assurance,” Trump v.
Hawaii, — S. Ct. —, 2017 WL 4014838 (Sept. 12, 2017). A formal assurance is a promise of
resettlement assistance issued by a resettlement agency contracted with the government. Hawaii
v. Trump, 871 F.3d 646, 659, 663 (9th Cir. 2017).
The Supreme Court’s September 12, 2017 order did not stay the previous injunction as to
any other client relationships of HIAS, which is a resettlement agency but also provides other
client services, Second Amended Complaint ¶ 20, 22 (describing provision of legal services), or
IRAP, which is not a resettlement agency and therefore does not provide formal assurances. The
issue raised by the government’s application and the question that had been decided by the Ninth
Circuit was whether “refugees covered by formal assurances” categorically could claim a “bona
fide relationship with an entity in the United States.” State of Hawaii v. Trump, 871 F.3d 646,
659 (9th Cir. 2017); see id. at 660-64 (detailing organizational injuries specific to the assurance
context); Applic. for Stay of Mandate, Trump v. Hawaii, No. 16-1540, at 20 (S. Ct. filed Sept.
11, 2017) (addressing only “the refugee-assurance aspect of the modified injunction” with
respect to entity relationships); see also id. at 2, 20-33 (same).
Other client relationships, like attorney-client relationships, were not addressed. As the
Ninth Circuit noted in deciding the question of assurances, “[t]he district court did not grant
relief with respect to foreign nationals in a client relationship with a legal services organization,”
and the plaintiffs did not appeal that ruling. Id. at 653 n.4 (emphasis added). Indeed, the district
court had explained that, for client relationships, “the nature of [the] representational services
2

In the alternative, Plaintiffs ask that the Court modify this statement to make clear that the
injunction only excludes refugees whose sole connection to an organization is an assurance.
2

varies significantly,” making it impossible to determine, as a categorical matter, whether client
relationships satisfied the Supreme Court’s “bona fide relationship” standard. State of Hawaii v.
Trump, — F. Supp. 3d —, 2017 WL 2989048, at *8 (D. Haw. July 13, 2017).
The government conceded before the District of Hawaii that some client relationships
would satisfy the “bona fide relationship” standard. See Defs’ Opp. to Mot. to Enforce, Dkt. No.
338, State of Hawaii v. Trump, No. 17-cv-50, at 14-15 (D. Haw. filed July 11, 2017) (stating that
client relationships “require[] a case-by-case analysis”); Defs’ Opp. to Mot. to Clarify, Dkt. No.
301, State of Hawaii v. Trump, No. 17-cv-50, at 20-21 (D. Haw. filed July 3, 2017) (same).
Under the Supreme Court’s stay order, whether or not a given client has formed such a
relationship therefore depends on whether the connection is “formal, documented, and formed in
the ordinary course,” such that barring the client’s entry would harm the entity. IRAP, 137 S. Ct.
at 2088. While some client relationships may not meet that standard—for instance, if they are
formed solely to “secure [the client’s] entry” under the injunction, id.—many others will.
Plaintiffs therefore respectfully seek clarification that the Court’s preliminary injunction
protects clients of organizations like IRAP and HIAS whose relationships to those entities meet
the Supreme Court’s “bona fide relationship” standard. In the alternative, Plaintiffs request that
the Court modify its Order to reflect that while an assurance alone does not bring a refugee
within the protection of the injunction, there is no categorical rule barring protection for clients
generally.

3

Respectfully submitted,
Dated: October 20, 2017
/s/ Omar C. Jadwat

Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox (Bar No. 17550)
National Immigration Law Center
PO Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]
Kathryn Claire Meyer†
Mariko Hirose†
International Refugee Assistance Project
40 Rector Street, 9th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
David Hausman†
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Cecillia D. Wang†
Cody H. Wofsy†
Spencer E. Amdur†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

4

David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No. 19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs

†Admitted Pro Hac Vice

5

CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2017, I electronically filed this Motion for Plaintiffs
with the Court Clerk using the ECF system, which will send notification to Defendants’
registered counsel.
Dated: October 20, 2017

/s/ Omar Jadwat
Omar Jadwat