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    December 2017
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Hawaii to Challenge Travel Ban 3.0

Today Hawaii filed supplemental briefing with the United States Supreme Court regarding the Hawaii v. Trump litigation. Shortly after filing that supplemental briefing, Hawaii notified the U.S. Supreme Court that it intends to seek leave from the Hawaii federal district court to file an amended complaint challenging the lawfulness of the third travel ban.

Click to read full letter

Attorney General Doug Chin said, “Hawaii fought the first and second travel bans because they were illegal and unconstitutional efforts to implement the President’s Muslim ban. Unfortunately, the third travel ban is more of the same. This new ban still discriminates on the basis of nationality, it still exceeds the President’s legal authority, and it still seeks to implement his Muslim ban. Simply adding an obvious target like North Korea to the list and banning travel by some government officials from Venezuela does nothing to disguise this. And – unlike the first two versions – Travel Ban 3.0 has no end date.”

Hawaii’s supplemental brief filed with the Supreme Court and its letter to the Supreme Court clerk are both attached.

Hawaii Files Supreme Court Brief on the Merits in the Travel Ban Case

Today Hawaii filed its brief on the merits before the United States Supreme Court in Hawaii v. Trump. The Trump Administration filed its opening Supreme Court brief on the merits on August 10, 2017.

Click to read brief

Hawaii’s brief states in part:

On March 6, 2017, the President issued an executive order that exceeds his authority under the immigration laws and transgresses the boundaries of the Establishment Clause. In defending that order, the President claims authority “parallel to Congress’s” to make “federal law” with respect to immigration, insists that the courts owe him complete “deference [as] the Executive,” and declares his decisions wholly “immune from judicial control.”

That breathtaking assertion of presidential power is irreconcilable with our constitutional framework. Our Framers crafted a Constitution predicated on the understanding that the “accumulation of all powers legislative, executive and judiciary in the same hands, * * * may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (James Madison) (Jacob Cooke ed., 1961). In issuing Executive Order No. 13,780 and then defending it in the courts, the President has named himself legislator, executive, and judge. The result is precisely the encroachment on individual liberties the Framers feared: The Order has sown chaos in our immigration system, separated our families, and infringed on the sovereignty of our States. It has also impeded the operations of our universities, our charities, and the tourism industry on which so many livelihoods depend.

In short, “this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). It falls to this Court to reestablish our constitutional separation of powers, and to reassert the bulwarks that protect our most sacred liberties.

Oral arguments before the United States Supreme Court will occur on October 10, 2017 in Washington, D.C.

A copy of Hawaii’s Supreme Court brief on the merits is attached.

Close Family Relatives and Refugees May Enter United States, Federal Appeals Court Rules

This afternoon the Ninth Circuit Court of Appeals affirmed the July 13, 2017 Hawaii district court order in the travel ban case, Hawaii v. Trump, allowing the entry to the United States of close family members and refugees with formal assurances from a United States resettlement agency.

Click tor read full opinion

On June 26, 2017, the United States Supreme Court issued an order in this case that the travel ban could not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States, including those with a “close familial relationship.” The same standard applies with respect to refugee admissions. The federal government subsequently issued guidance that such “close familial relationships” did not include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States.

Attorney General Chin said, “Today’s decision by the 9th Circuit keeps families together. It gives vetted refugees a second chance. The Trump administration keeps taking actions with no legal basis. We will keep fighting back.”

The Ninth Circuit’s order states in part:

[I]t is clear that the Supreme Court’s use of “close familial relationship[s]” meant that the Court wanted to exclude individuals who have no connection with the United States or have remote familial relationships that would not qualify as “bona fide.” The Government does not meaningfully argue how grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States can be considered to have “no connection” to or “lack any bona fide relationship” with persons in the United States. Nor does the Government explain how its proposed scope of exclusion would avoid the infliction of concrete hardships on such individuals’ family members in the United States. Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.

*** The Government offers no explanation as to why it relied on its selected provisions of the INA, while ignoring other provisions of the same statute as well as other immigration laws. The INA was implemented with “the underlying intention of . . . preservation of the family unit.” The Government’s artificially narrow interpretation of close familial relationships directly contradicts this intention.

*** Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted. In the same way that the Court considered the harms of the U.S. citizen who wants to be reunited with his mother-in-law and the permanent resident who wants to be reunited with his wife, the employer that hired an employee, the university that admitted a student, and the American audience that invited a lecturer, the district court correctly considered the resettlement agency that has given a formal assurance for specific refugees.

*** Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance.

A copy of the Ninth Circuit’s decision is attached.

Oral arguments on the merits of the travel ban appeals before the U.S. Supreme Court are scheduled to occur on October 10, 2017 in Washington, D.C.

Attorney General Doug Chin’s Statement on Today’s U.S. Supreme Court Order

This morning Attorney General Doug Chin issued the following statement in response to today’s order from the United States Supreme Court:

“Today the United States Supreme Court denied the Trump Administration’s motion to clarify. They confirmed the Hawaii federal court order that grandparents, grandchildren, nieces, nephews, and cousins are indeed close family. This confirms we were right to say that the Trump Administration over-reached in trying to unilaterally keep families apart from each other, in violation of the Supreme Court’s prior ruling. The Supreme Court did stay Judge Watson’s order with respect to refugees covered by a formal assurance, pending resolution by the Ninth Circuit Court of Appeals. We are currently preparing our arguments for the Ninth Circuit to resolve that issue.”

Ninth Circuit Rules District Court Has the Ability to Interpret and Enforce the U.S. Supreme Court’s Order

A three-judge panel of the Ninth Circuit Court of Appeals issued an order this afternoon in response to today’s filing by the State of Hawaii asking the Ninth Circuit to review the scope of the travel and refugee bans in Hawaii v. Trump.

The Ninth Circuit’s order explained it lacks jurisdiction to address the State of Hawaii and Dr. Elshikh’s appeal of Judge Watson’s order denying the motion to clarify the scope of the injunction, because Judge Watson’s order denying the motion to clarify was not a final judgment nor immediately appealable. According to the court, “[b]ecause the “practical effect” of Plaintiffs’ requested relief is declaratory in nature—not injunctive—we do not construe their clarification motion before the district court as one for injunctive relief. And this scenario does not present an order of “practical finality” because … Plaintiffs may seek injunctive relief from the district court.”

Of critical importance, the Ninth Circuit said in part:

[W]e note that … the district court … does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction … Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.

Attorney General Chin said, “Today’s Ninth Circuit ruling makes clear that Judge Watson does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction. We appreciate the Ninth Circuit for ruling so quickly and will comply.”

Hawaii Federal Court Judge Declines to Rule on Request to Clarify Scope of Travel Ban

Hawaii federal district court Judge Derrick K. Watson today denied the State of Hawaii’s motion to clarify the scope of the injunction regarding the travel and refugee bans in Hawaii v. Trump.

Click to view 6 page docket

In its order today, the court specifically did not address the substance of either party’s arguments regarding the proper scope of the injunction. Rather, the order focused exclusively on the procedural question regarding which court is the appropriate forum to decide the merits of Hawaii’s motion.

Attorney General Doug Chin said, “The key takeaway from Judge Watson’s order is that he declined to address the specific merits of our request to clarify the scope of the injunction of the travel and refugee bans. The scope of the travel and refugee bans badly needs to be resolved and not just according to the Trump Administration’s interpretation. While we understand Judge Watson’s direction to address our request to the United States Supreme Court, we must evaluate that against the normal course of order as it relates to appeals and the clarification of injunctions. Whatever course it takes, we will get this resolved.”

Hawaii Argues to U.S. Supreme Court that Trump Travel Ban is Unnecessary and Unlawful

Today, Hawaii filed a supplemental brief with the U.S. Supreme Court, in which it argues that a new memo issued by President Trump on June 14, 2017 has rendered his controversial travel ban and refugee ban both unnecessary and unlawful.

Click to read

On May 25, 2017, the Fourth Circuit Court of Appeals affirmed an injunction against the travel ban in International Refugee Assistance Project (IRAP) v. Trump. On June 1, 2017, the Trump Administration asked the United States Supreme Court to stay the Fourth Circuit injunction issued in IRAP v. Trump, grant discretionary review (called certiorari) in IRAP v. Trump, and stay the injunction issued by Hawaii federal district court Judge Derrick K. Watson in Hawaii v. Trump. On June 12, 2017, the Ninth Circuit Court of Appeals affirmed Judge Watson’s order on statutory grounds. The Ninth Circuit upheld the district court’s injunction blocking the travel ban and the refugee ban. The only portions of the district court’s injunction that were not upheld concerned internal studies undertaken by the Government and whether the President, rather than his cabinet members, should be named directly. Neither change reduces the effectiveness of the injunction against the travel and refugee bans.

Following the Ninth Circuit’s ruling, the Trump Administration asked the Supreme Court for supplemental briefing to address the Ninth Circuit’s decision. The Trump Administration filed its supplemental brief on June 15, 2017, requesting both a stay of the injunction pending appeal and that the Supreme Court grant certiorari in Hawaii v. Trump, alongside IRAP v. Trump.

Two days after the Ninth Circuit’s decision, on June 14, President Trump had issued a memorandum instructing agencies to begin internal vetting reviews within hours of the Ninth Circuit’s decision taking effect, and to put the travel and refugee bans into effect whenever the remaining injunctions are lifted. Yesterday Judge Watson ordered the injunction to be revised consistent with the Ninth Circuit opinion.

In today’s filing, Hawaii argues in part that since the alleged rationales for the bans were to allow the Government to conduct these internal vetting reviews, the new memo from the President makes clear that the Order’s travel and refugee restrictions are no longer required to accomplish what the Government intended. “The President’s memorandum also empties the present petition for certiorari of any compelling justification. The Government does not explain why this Court’s review would be warranted once the supposed purpose of the Order – the completion of the vetting upgrade – has lapsed, as it almost surely will have by the time this case is heard in October,” Hawaii asserts.

Hawaii’s supplemental brief also states:

“Two Courts of Appeals are now united in enjoining Executive Order No. 13,780—a policy that flouts the limits of Executive power, denigrates Muslim-Americans, and threatens the Nation’s reputation as a place of refuge for immigrants and refugees alike. … Both courts saw that rationale for the sham that it was, one that can neither mask the Order’s denigration of Muslims nor justify ignoring the immigration laws’ finely reticulated limits.”

A copy of Hawaii’s supplemental brief in opposition is attached.

Supplemental Addendum. 

Travel Ban Case Update: Hawaii Files Answering Brief with the Ninth Circuit Court Appeals

Last Friday afternoon the State of Hawaii filed its answering brief with the Ninth Circuit Court of Appeals in Hawaii v. Trump.

Click to read

On March 15, 2017, Judge Derrick Watson issued a 43-page opinion temporarily enjoining the federal government nationwide from enforcing or implementing Sections 2 and 6 of a second Executive Order issued by President Trump (the travel ban).

The travel ban would have restricted immigration from Iran, Syria, Somalia, Sudan, Libya, and Yemen, and also temporarily suspended refugee admissions. The travel ban had been scheduled to become effective on March 16, 2017.

The temporary restraining order blocking the travel ban was converted to a preliminary injunction on March 29, 2017. On April 7, 2017, the Department of Justice filed its opening brief seeking to overturn that preliminary injunction.

Hawaii’s answering brief states in part:

“The Executive Order flouts [the] protections [in the Constitution]. While the Constitution commits the immigration power to Congress, the President claims it for his own, recognizing no statutory limits on his powers of exclusion. And while the Bill of Rights guarantees Due Process and forbids the establishment of religion, the President seeks to enact a thinly veiled Muslim ban, shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country. The Constitution is not so easily cast aside.”

The Trump Administration is expected to file a reply brief on April 28, 2017. The appeal is scheduled to be heard before a panel of the Ninth Circuit Court of Appeals on May 15, 2017 at 9:30 a.m. in Seattle, Washington.

Hawaii Attorney General Questions President Trump in D.C. About Travel Ban

During a question and answer session at the White House today with President Donald Trump and state attorneys general from across the country, Hawaii Attorney General Doug Chin asked the President about the travel ban that prompted lawsuits across the country challenging the ban’s constitutionality, including one filed by Chin on behalf of the State of Hawaii on February 3, 2017.

Attorney General Chin told President Trump he understood a new executive order might be released this week relating to a ban on travel from seven Muslim-majority nations. Chin asked the President to explain the President’s thinking behind the executive order and what the President wanted to accomplish.

Attorney General Chin stated, “President Trump asked if my state had sued him and I said, ‘we did.’  The President then answered my question by saying that his goal was to make America safe again and extreme vetting was part of achieving that goal.”

Attorney General Chin added, “The security and safety of our nation is a universal goal. I firmly believe you don’t have to target people based on national origin or religion to get there – in fact, doing so harms our nation’s security. Our Constitution does not allow such discrimination. The State of Hawaii will review future executive orders from the federal government with this in mind and will sue if we have to.”

After the question and answer session, which Vice President Mike Pence and Chief of Staff Reince Priebus also attended, the Vice President spoke with Attorney General Chin and, according to Chin, told Chin that the administration cared about Hawaii’s concerns.

Hawaii Travel Ban Lawsuit Adds Religious Freedom Claim

Attorney General Doug Chin announced today that Hawaii federal judge Derrick K. Watson has partially lifted the stay he placed last week on Hawaii’s travel ban lawsuit. This action by Judge Watson allows Dr. Ismail Elshikh, a U.S. citizen and Hawaii resident, to join Hawaii’s case against the President’s Executive Order banning travel from seven Muslim-majority nations and suspending the nation’s refugee program.

Click to read lawsuit

Judge Watson also allowed Hawaii to add a new count, alleging violations of the federal Religious Freedom Restoration Act. The Act prohibits the federal government from substantially burdening the exercise of religion, even if the burden results from a rule of general applicability.

The stay Judge Watson issued last week remains in place for all other purposes, so long as the nationwide injunction against implementation of the President’s Executive Order, signed on January 27, 2017, remains in place. On Friday, February 10th, a 3-0 decision from the Ninth Circuit Court of Appeals allowed the nationwide injunction to remain in place.

Attorney General Chin added, “President Trump’s executive order imposes a substantial burden on the exercise of religion. Freedom of religion is one of the most important rights and values for citizens in this country, no matter what religion that is. The additional claim in our complaint protects that right.”

A copy of the first amended complaint in Hawaii v. Trump is attached.

HAWAII VS. PRESIDENT TRUMP

Hawaii Attorney General Doug Chin announced today that the state of Hawaii has filed a lawsuit against President Donald Trump in Hawaii federal court.

Click to read lawsuit

The lawsuit filed today asks the court to block implementation of the January 27, 2017 Executive Order signed by President Trump entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Executive Order restricts immigration from seven Muslim-majority countries: Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen. It suspends all refugee admission for 120 days and bars all Syrian refugees indefinitely. It grants entry preferences to minority religions. This order is the beginning of the fulfillment of President Trump’s campaign pledge to implement a “total and complete shutdown of Muslims entering the United States.”

Attorney General Chin said, “What makes our country special and a beacon across the world is its inclusive democracy and the rule of law. Everyone in the United States, including the President, must follow the law and follow the Constitution.”

The complaint alleges several causes of action:

  • The Executive Order is unconstitutional because it favorsone religion over another in violation of the establishment clause of the First Amendment;
  • The Executive Order is unconstitutional because it denies equal protection of the law on the basis of national origin;
  • The Executive Order is unconstitutional because it curtails the right to travel without any legal justification;
  • The Executive Order is unconstitutional because it deprives individuals of their liberty interests without due process of law;
  • The Executive Order is illegal because it violates the Immigration and Nationality Act and the Administrative Procedures Act.

Hawaii’s papers filed today asked the court to block the order across the country. As the state’s memo argues:

Hawaii joins the many voices that have condemned the Order. But this pleading is not about politics or rhetoric—it is about the law. The simple fact is that the Order is unlawful. By banning Muslims and creating a preference for Christian refugees, the Order violates the Establishment Clause of the United States Constitution. By those same acts, it violates the equal protection guarantee of the Fifth Amendment. By failing utterly to provide procedures or protections of any kind for people detained or turned away at our airports, it violates the Due Process Clause. And by enshrining rank discrimination on the basis of nationality and religion, it flies in the face of statutes enacted by Congress.

Hawaii has asked for a hearing on its motion for a temporary restraining order in no more than 14 days.

Attorney General Chin added, “Hawaii is an island state. This illegal order affects our state in a unique way. Under this order, an Iraqi permanent resident on the mainland U.S. cannot leave the country without the risk of never being allowed to return, but he still can travel throughout the continental United States. That same person here cannot so much as visit another island within our state for fear of being detained by federal agents at the airport. In the past, the people of this state experienced discrimination by the federal government based on national origin. We must speak up and not let this happen again.”

Assisting the state of Hawaii in the litigation is Neal Kumar Katyal, Esq., former Acting Solicitor General of the United States during the Obama Administration. He is currently a partner at the Washington, D.C. law firm Hogan Lovells, and a law professor at Georgetown University.

Copies of the complaint, motion for a temporary restraining order, and memorandum in support of the motion for a temporary restraining order are attached.