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State v. Trump

United States Court of Appeals, Ninth Circuit

September 7, 2017

STATE OF HAWAII; ISMAIL ELSHIKH, Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants.

          Argued and Submitted August 28, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding D.C. No. 1:17-cv-00050-DKW-KSC

          Jeffrey B. Wall, Acting Solicitor General; Edwin S. Kneedler, Deputy Solicitor General; Chad A. Readler, Acting Assistant Attorney General; Elliot Enoki, Acting United States Attorney; Hashim M. Mooppan, Deputy Assistant Attorney General; Douglas N. Letter, Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr., Attorneys, Appellate Staff; Civil Division, U.S. Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Neal Kumar Katyal, Colleen Roh Sinzdak, Mitchell P. Reich, and Elizabeth Hagerty, Hogan Lovells U.S. LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells U.S. LLP, New York, New York; Sara Solow and Alexander B. Bowerman, Hogan Lovells U.S. LLP, Philadelphia, PA; Douglas S. Chin, Attorney General; Clyde J. Wadsworth, Solicitor General; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, and Robert T. Nakatsuji, Deputy Attorneys General; Department of the Attorney General, State of Hawaii, Honolulu, Hawai'i; for Plaintiffs-Appellees.

          Michael Price and Faiza Patel, Brennan Center for Justice at New York University School of Law, New York, New York; Lena F. Masri, Gadeir I. Abbas, Council on American-Islamic Relations, Washington, D.C.; Jethro Eisenstein, Profeta & Eisenstein, New York, New York; for Amici Curiae Adam Soltani, Asma Elhuni, Hassan Shibly, and Basim Elkarra.

          Jonathan M. Freiman and Tahlia Townsend, Wiggin and Dana LLP, New Haven, Connecticut; Harold Hongju Koh and Hope Metcalf, Rule of Law Clinic, Yale Law School, New Haven, Connecticut; for Amici Curiae Former National Security Officials.

          G. Eric Brunstad, Jr., Dechert LLP, Hartford, Connecticut; for Amicus Curiae Human Rights First.

          Robert A. Wiygul and Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, Pennylvania; for Amici Curiae Law Professors.

          Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Zainab A. Chaudhry, Assistant Solicitor General, Eric T. Schneiderman, Attorney General, State of New York; for Amici Curiae States of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia.

          Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, Sarah L. Mehta, Spencer E. Amdur, and David K. Hausman, American Civil Liberties Union Foundation, New York, New York; Karen C. Tumlin, Nicholas Espíritu, Melissa S. Keaney, and Ester Sung, National Immigration Law Center, Los Angeles, California; Justin B. Cox, National Immigration Law Center, Atlanta, Georgia; Cecilia D. Wang and Cody H. Wofsy, American Civil Liberties Union Foundation, San Francisco, California; Mateo Caballero, ACLU of Hawai'i Foundation, Honolulu, Hawai'i; Mariko Hirose, Rebecca Heller, and Mark Wasef, International Refugee Assistance Project, New York, New York; David Cole, Daniel Mach, and Heather L. Weaver, American Civil Liberties Union Foundation, Washington, D.C.; for Amici Curiae International Refugee Assistance Project and HIAS, Inc.

          James C. Martin, Donna M. Doblick, and Devin M. Misour, Reed Smith LLP, Pittsburgh, Pennsylvania; Jayne Fleming, Reed Smith LLP, New York, New York; for Amicus Curiae U.S. Committee for Refugees and Immigrants.

          Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

          OPINION

          PER CURIAM.

         We are asked to review the district court's modified preliminary injunction, which enjoins the Government from enforcing Executive Order 13780 against (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program ("USRAP") through the Lautenberg Amendment.

         For the reasons that follow, we conclude that in modifying the preliminary injunction to preserve the status quo, the district court carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088 (2017), and did not abuse its discretion. We affirm.

         I

         A

         On March 6, 2017, President Trump issued Executive Order 13780, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States." Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (the "Executive Order").[1]Section 2(c) of the Executive Order suspends for ninety days the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen into the United States. Id. at 13213. Section 6(a) suspends for 120 days the entry of refugees into the United States and decisions on applications for refugee status, and § 6(b) cuts by more than half the number of refugees that may be admitted to the United States in fiscal year 2017 from 110, 000 persons to 50, 000 persons. Id. at 13215-16.

         B

         On March 15, 2017, the District of Hawai'i temporarily enjoined § 2 and § 6 of the Executive Order, holding that Plaintiffs, the State of Hawai'i and Dr. Elshikh, had shown a likelihood of success on the merits of their Establishment Clause claim. Hawai'i v. Trump, - F.Supp.3d -, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). Plaintiffs had argued that the Executive Order was primarily motivated by anti-Muslim animus and not by its purported national security objective.

         On March 29, 2017, the district court converted the temporary restraining order into a preliminary injunction, and entered the following injunction:

Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.

Hawai'i v. Trump, - F.Supp.3d -, No. CV 17-00050 DKW-KSC, 2017 WL 1167383, at *9 (D. Haw. Mar. 29, 2017), aff'd in part, vacated in part, remanded, 859 F.3d 741 (9th Cir. 2017).

         On June 12, 2017, we affirmed in substantial part the preliminary injunction. See Hawai'i v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam), cert. granted sub nom. Trump v. Int'l Refugee Assistance Project, 137 S.Ct. 2080. Rather than reach the constitutional question, we resolved the appeal on statutory grounds, concluding that the President exceeded the scope of his delegated authority and that the Executive Order violated other provisions of the Immigration and Nationality Act ("INA"). Id. at 755-56. We also vacated parts of the injunction that enjoined the Government from conducting internal reviews of its vetting procedures and vacated the injunction to the extent it ran against the President. Id. at 788-89.

         We remanded the case to the District of Hawai'i to enter an amended preliminary injunction consistent with our opinion and granted the parties' motion to expedite the issuance of the mandate. See id. at 789. On June 19, 2017, the district court entered the following amended preliminary injunction:

Defendants JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of Executive Order No. 13780 across the Nation- except for those portions of Sections 2 and 6 providing for internal review procedures that do not burden individuals outside of the executive branch of the federal government. Enforcement of the enjoined provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.

Hawai'i v. Trump, No. 1:17-cv-00050-DKW-KSC (D. Haw. June 19, 2017), ECF No. 291 (footnote omitted).

         C

         On March 16, 2017, the District of Maryland entered a separate preliminary injunction, barring enforcement of § 2(c) of the Executive Order, concluding that the plaintiffs were likely to succeed on the merits of their Establishment Clause claim. Int'l Refugee Assistance Project v. Trump, - F.Supp.3d -, No. CV TDC-17-0361, 2017 WL 1018235, at *16 (D. Md. Mar. 16, 2017), aff'd in part, vacated in part, 857 F.3d 554 (4th Cir. 2017).

         The Fourth Circuit largely affirmed the injunction. Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), cert. granted, 137 S.Ct. 2080 (2017). The majority of the Fourth Circuit's en banc court held that plaintiff John Doe #1, a permanent resident who alleged that the Executive Order prevented his wife from obtaining a visa, was likely to prevail on the merits of the Establishment Clause claim. Id. at 578-79, 601.

         D

         The Government then filed petitions for certiorari and applications to stay the preliminary injunctions entered in Hawai'i and in International Refugee Assistance Project. On June 26, 2017, the Supreme Court granted the petitions for certiorari and granted the stay applications in part. Trump, 137 S.Ct. at 2083.

         As to § 2(c) of the Executive Order, the Supreme Court stayed the preliminary injunctions "to the extent the injunctions prevent enforcement of § 2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Id. at 2087. The Court "balance[d] the equities, " id., and concluded that for foreign nationals "who have no connection to the United States at all[, ] . . . [d]enying entry to such a foreign national does not burden any American party by reason of that party's relationship with the foreign national, " id. at 2088. But the Court left the injunctions in place "with respect to parties similarly situated to [John Doe #1], Dr. Elshikh, and Hawaii." Id. The Court explained: "In practical terms, this means that § 2(c) may 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." Id. The Court explained how the relationships held by the plaintiffs "illustrate the sort of relationship that qualifies":

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe's wife or Dr. Elshikh's mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid ยง 2(c): For example, a nonprofit ...

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