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 Dockets Hawaii Appeal Regarding Scope of Travel Ban

Today the State of Hawaii asked the Ninth Circuit Court of Appeals to review the scope of the travel and refugee bans in Hawaii v. Trump after federal district court Judge Derrick K. Watson declined to grant Hawaii’s motion for clarification.

Click to view Ninth Circuit Filing

On June 26, 2017, the United States Supreme Court agreed to hear arguments in October regarding this case. In a 6-3 decision, the Court ordered that while arguments were pending, people from the six Muslim-majority countries with no connection to the United States may not enter the country, but those with a good faith connection to a U.S. individual or entity may enter. The same standard applies with respect to refugee admissions. Hawaii alleges that the Trump Administration’s guidelines issued on June 29 are overly restrictive and do not comply with the Supreme Court’s ruling. That same day, Hawaii asked the federal district court to clarify the Supreme Court’s order.

Yesterday’s order from Judge Watson declined to address the merits of the request and suggested that Hawaii instead seek clarification from the Supreme Court. Judge Watson also stated that he would rule on the merits if instructed to do so by the higher court.

Today’s motion is directed to the Ninth Circuit Court of Appeals for first review. This tracks the ordinary process for appeals within the federal courts and is done to indicate to the Supreme Court that Hawaii followed proper procedures in the courts below. Both district courts and courts of appeal routinely interpret Supreme Court decisions.

Attorney General Chin said, “We are now in the middle of a 90-day partial travel ban. The Trump Administration has reserved the option to extend or even expand the travel ban at the end of it. Many felt the balance struck by the Supreme Court was nuanced and fairly reasonable, but the Trump Administration has flouted the Supreme Court’s order from the start. What happens in the next several weeks matters a lot if the administration is not subject to the checks and balances of the courts.”

Today’s motion states in part:

Parties seeking to clarify or enforce an injunction—even an injunction that has been partially stayed by the Supreme Court—must seek relief in the first instance from the district court that issued it. That is precisely what the State of Hawaii and Dr. Elshikh did when they became aware that the Government intended to flagrantly violate the injunction against the President’s thinly veiled Muslim bans. They had obtained the injunction from the District Court of the District of Hawaii to protect their own constitutional and statutory rights, as well as the rights of the citizens of the State of Hawaii and the United States as a whole. They therefore returned to that District Court to ensure that injunction was followed and their rights were vindicated. But the District Court refused to grant this relief, making the assertion—endorsed by no party—that Plaintiffs must seek relief directly from the Supreme Court.

That is wrong. For over a week, the Government has been unlawfully excluding foreign nationals and thereby inflicting irreparable harm on the American individuals and entities with whom they have relationships. For over a week, the Government has been ignoring the dictates of the Judicial Branch, fashioning and imposing a new Muslim ban wholly divorced from any national security rationale. Every day that passes is a day when our Government is turning away human beings—from newborn children to elderly grandparents—whom the injunction requires to be admitted. It is therefore incumbent on this Court to fulfill its traditional role by reversing the District Court’s erroneous holding and issuing the injunctive relief necessary to ensure that Plaintiffs’ statutory and constitutional rights are protected in the manner intended by the District Court, this Court, and the Supreme Court itself.

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.”

Travel Ban Parties Rebut Trump Administration’s Interpretation of U.S. Supreme Court Ruling

Today Hawaii filed a reply memo supporting its June 29th request to federal district court Judge Derrick K. Watson to clarify the scope of the travel and refugee ban injunction in Hawaii v. Trump, in light of last Monday’s ruling by the United States Supreme Court. Hawaii’s latest filing is a reply to the opposition memorandum filed by the Trump Administration on July 3rd.

In the Trump Administration’s opposition, it argued that “close familial relationships” should only be those specifically described in certain portions of the Immigration and Nationality Act (INA). The U.S. Supreme Court, however, already decided that this is not the case. For example, one of the relationships the Supreme Court said was “clearly” close family – Dr. Elshikh’s mother-in-law (and those “similarly situated”) – is not found in any provision of the immigration laws the Trump Administration cites. Yet the Supreme Court still included them as a “close familial relationship” for the purposes of the injunction obtained by Hawaii. Additionally, other immigration laws include the very same close family members the Trump Administration wants to exclude.

Attorney General Doug Chin said, “In its 6-3 order, the U.S. Supreme Court used a balancing test that says the travel and refugee bans should not be applied when doing so would inflict a concrete hardship on someone in the United States. The Trump Administration’s guidelines may inflict a concrete hardship by excluding grandparents, uncles, nieces, cousins, and more. This is why we have asked the federal court to clarify the scope of its injunction.”

Hawaii’s reply memorandum states in part:

For five days and counting, the Government has been directing U.S. consulates and refugee processing organizations to deny entry to foreign nationals whose grandparents, aunts, nephews, and other close relatives are waiting for them in this country. At the same time, the Government has barred the doors to numerous refugees with a connection to the United States, even where a resettlement agency has a relationship with a particular refugee that involves the investment of copious resources for pre-arrival planning. These actions plainly “burden * * * American part[ies] by reason of [their] relationship with [a] foreign national,” and so are unlawful.

The Government could have avoided this result. It could have engaged with Plaintiffs in a dialogue that would have brought to light these harms, as well as the multiple additional errors the Government has already corrected. But the Government refused. Indeed, even on the day of the rollout, the Government spent precious hours conducting a conference call not with Plaintiffs, but with reporters. It then issued flawed guidance regarding fiancé admissions that a brief discussion with Plaintiffs would have easily avoided.

In short, the Government elected to implement the stay in a manner that jeopardizes the rights of countless Americans and keeps the Government on the deeply flawed trajectory it has pursued since the release of the first Executive Order.

Hawaii filed its reply memorandum today, one day early, because the people that the Trump Administration has excluded from the definition of “close family members” might already be denied entry into the country.

Click to read full memo