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)

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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: (213) 639-3900 Fax: (213) 639-3911 Justin B. Cox (Bar No. 17550) National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 Kathryn Claire Meyer† Mariko Hirose† International Refugee Assistance Project 40 Rector Street, 9th Floor New York, New York 10006 Tel: (646) 459-3044 Fax: (212) 533-4598 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: (212) 549-2600 Fax: (212) 549-2654 Cecillia D. Wang† Cody H. Wofsy† Spencer E. Amdur† American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 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: (410) 889-8555 Fax: (410) 366-7838 David Cole† Daniel Mach† Heather L. Weaver† American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel: (202) 675-2330 Fax: (202) 457-0805 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

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