and Submitted May 15, 2017 Seattle, Washington
from the United States District Court for the District of
Hawai'i D.C. No. 1:17-cv-00050-DKW-KSC Derrick Kahala
Watson, District Judge, Presiding
Jeffrey Bryan Wall (argued), Acting Solicitor General; Edwin
S. Kneedler, Deputy Solicitor General; Sharon Swingle, Anne
Murphy, Lowell V. Sturgill Jr., H. Thomas Byron III, and
Douglas N. Letter, Attorneys, Appellate Staff; August E.
Flentje, Special Counsel to the Assistant Attorney General;
Elliot Enoki, Acting United States Attorney; Chad A. Readler,
Acting Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Kumar Katyal (argued), 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, Honolulu, Hawai'i; for
A. Keller, Solicitor General; J. Campbell Barker, Deputy
Solicitor General; Ari Cuenin, Assistant Solicitor General;
Ken Paxton, Attorney General; Jeffrey C. Mateer, First
Assistant Attorney General; Office of the Attorney General,
Austin, Texas; for Amici Curiae States of Texas, Alabama,
Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, North
Dakota, Oklahoma, South Carolina, South Dakota, Tennessee,
and West Virginia, and Governor Phil Bryant of the State of
H. Ali, Roderick & Solange MacArthur Justice Center,
Washington, D.C.; Jessica M. Wan, Lisa W. Cataldo, and David
J. Minkin, McCorriston Miller Mukai MacKinnon LLP, Honolulu,
Hawai'i; for Amicus Curiae The Roderick and Solange
MacArthur Justice Center.
D. Fram and Alexandra P. Grayner, Covington & Burling
LLP, San Francisco, California; Andrew Guy, Michael Baker,
Karun Tilak, and Ligia M. Markman, Covington & Burling
LLP, Washington, D.C.; for Amici Curiae Interfaith Coalition.
P. Martin, Eileen L. Morrison, Alicia Rubio, Joshua M.
Daniels, William B. Brady, and Nicholas K. Mitrokostas,
Goodwin Procter LLP, Boston, Massachusetts, for Amici Curiae
The Foundation for the Children of Iran and Iranian Alliances
Michael R. Scott, Lisa J. Chaiet Rahman, and Amit D. Ranade,
Hillis Clark Martin & Peterson P.S., Seattle, Washington,
for Amici Curiae Episcopal Bishops.
Jackson, R. Adam Lauridsen, and John W. Keker, Keker, Van
Nest & Peters LLP, San Francisco, California, for Amicus
Curiae Khizr Khan.
A. Rappaport, Proskauer Rose LLP, Los Angeles, California;
Terrance Nolan, General Counsel and Secretary, New York
University, New York, New York; Claire Wong Black and J.
Blaine Rogers, Alston Hunt Floyd & Ing, Honolulu,
Hawai'i; Tiffany M. Woo, Seth D. Fiur, and Steven E.
Obus, Proskaur Rose LLP, New York, New York; for Amicus
Curiae New York University.
X. Fellmeth, Sandra Day O'Connor College of Law, Arizona
State University, Phoenix, Arizona; Jonathan Hafetz, Seton
Hall University School of Law, Newark, New Jersey; Joseph M.
McMillan and Michelle L. Maley, Perkins Coie LLP, Seattle,
Washington; for Amici Curiae International Law Scholars and
Lindsay C. Harrison, Tassity S. Johnson, Erica L. Ross, and
Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C.,
for Amici Curiae Colleges and Universities.
Kelly Persyn, Persyn Law & Policy, San Francisco,
California, for Amicus Curiae American Professional Society
on the Abuse of Children.
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.
Anna-Rose Mathieson and Ben Feuer, California Appellate Law
Group LLP, San Francisco, California, for Amici Curiae
Scholars of American Religious History & Law.
Richard D. Bernstein, Willkie Farr & Gallagher LLP,
Washington, D.C., for Amicus Curiae T.A., a U.S. Citizen of
Matz, Robbins, Russell, Englert, Orseck, Untereiner &
Sauber LLP, Washington, D.C., for Amici Curiae Constitutional
A. Hearron, Morrison & Foerster LLP, Washington, D.C.;
Purvi G. Patel, Morrison & Foerster LLP, Los Angeles,
California; Amanda Aikman and Jennifer K. Brown, Morrison
& Foerster LLP, New York, New York; Sandeep N. Nandivada,
Morrison & Foerster LLP, McLean, Virginia; for Amici
Curiae Interfaith Group of Religious and Interreligious
A. Ware, Arnold & Porter Kaye Scholer LLP, San Francisco,
California; Aziz Huq, Johnathan J. Smith, and Farhana Khera,
Muslim Advocates, Oakland, California; for Amici Curiae
Muslim Rights, Professional and Public Health Organizations.
L. Franklin, Solicitor General, and Lisa Madigan, Attorney
General, Office of the Illinois Attorney General, Chicago,
Illinois; for Amici Curiae States of Illinois, California,
Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts,
New Mexico, New York, North Carolina, Oregon, Rhode Island,
Vermont, Virginia, and Washington, and the District of
William S. Consovoy, Consovoy McCarthy Park PLLC, Arlington,
Virginia; Kimberly S. Hermann, Southeastern Legal Foundation,
Marietta, Georgia; for Amicus Curiae Southeastern Legal
L. White III and Erik M. Zimmerman, American Center for Law
and Justice, Ann Arbor, Michigan; Geoffrey R. Surtees and
Francis J. Manion, American Center for Law and Justice, New
Hope, Kentucky; Benjamin P. Sisney, Matthew R. Clark, Craig
L. Parshall, Jordan Sekulow, Andrew J. Ekonomou, Colby M.
May, Stuart J. Roth, and Jay Alan Sekulow, American Center
for Law and Justice, Washington, D.C.; for Amicus Curiae
American Center for Law and Justice.
A. Shah and Martine E. Cicconi, Akin Gump Strauss Hauer &
Feld LLP, Washington, D.C.; Robert S. Chang, Fred T.
Korematsu Center for Law and Equality, Seattle, Washington;
Eric Yamamoto, Fred T. Korematsu Professor of Law and Social
Justice, Honolulu, Hawai'i; Claire Wong Black and Louise
K.Y. Ing; Alston Hunt Floyd & Ing, Honolulu, Hawai'i;
Alice Hsu and Robert A. Johnson, Akin Gump Strauss Hauer
& Feld LLP, New York, New York; Jessica M. Weisel, Akin
Gump Strauss Hauer & Feld LLP, Los Angeles, California;
for Amici Curiae Fred T. Korematsu Center for Law and
Equality, Jay Hirabayashi, Holly Yasui, Karen Korematsu,
Civil Rights Organizations, and National Bar Associations of
Richard B. Katskee, Carmen Green, Bradley Girard, Kelly M.
Percival, Andrew L. Nellis, and Eric Rothschild, Americans
United for Separation of Church and State, Washington, D.C.;
Gillian Gillers and Kristi L. Graunke, Southern Poverty Law
Center, Atlanta, Georgia; for Amici Curiae Members of the
Clergy, Americans United for Separation of Church and State,
Bend the Arc: A Jewish Partnership for Justice, The Riverside
Church in the City of New York, and The Southern Poverty Law
Ruth Solomon, Deputy Corporation Counsel; Edward N. Siskel,
Corporation Counsel; City of Chicago Department of Law,
Chicago, Illinois; Eliberty Lopez, Brian Neff, and Ryan P.
Poscablo, Riley Safer Holmes & Cancila LLP, New York, New
York; Nick Kahlon, Riley Safer Holmes & Cancila LLP,
Chicago, Illinois; for Amici Curiae Cities of Chicago, Los
Angeles, New York, Philadelphia, and Other Major Cities and
A. Klein, President, American Bar Association, Chicago,
Illinois; Jared S. Stein, Arianna Markel, Erin J. Morgan,
Aidan Synnott, and Sidney S. Rosdeitcher, New York, New York;
for Amicus Curiae American Bar Association.
Jonathan A. Scruggs and Kevin H. Theriot, Alliance Defending
Freedom, Scottsdale, Arizona, as and for Amicus Curiae
Alliance Defending Freedom.
Richard P. Bress, Alexandra P. Schechtel, and Elana
Nightingale Dawson, Latham & Watkins LLP, Washington,
D.C.; Christopher Mortweet, Latham & Watkins LLP, Menlo
Park, California; for Amicus Curiae Oxfam America, Inc.
Christopher J. Hajec, Mark S. Venezia, and Elizabeth A.
Hohenstein, Immigration Reform Law Institute, Washington,
D.C., as and for Amicus Curiae Immigration Reform Law
Eric Brunstad, Jr., Dechert LLP, Hartford, Connecticut, for
Amici Curiae HIAS, The IRC, and USCRI.
W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle,
Washington; Leo Gertner, Deborah L. Smith, Claire Prestel,
and Nicole G. Berner, Service Employees International Union,
for Amicus Curiae Service Employees International Union;
Judith Rivlin, Washington, D.C., as and for Amicus Curiae
American Federation of State, County, and Municipal
Employees; Channing M. Cooper and David J. Strom, Washington,
D.C., as and for Amicus Curiae American Federation of
Jaffe, Brent Wible, Lauren Kaplin, and Daniel Braun,
Freshfields Bruckhaus Deringer U.S. LLP, Washington, D.C.;
Karen Wiswall and David Y. Livshiz, Freshfields Bruckhaus
Deringer U.S. LLP, New York, New York; for Amicus Curiae Cato
Kenneth A. Klukowski, Alexandria, Virginia, as and for Amicus
Curiae American Civil Rights Union.
Elizabeth B. Wydra, David H. Gans, and Brianne J. Gorod,
Constitutional Accountability Center, Washington, D.C.; Peter
Karanjia and Jason Harrow, Davis Wright Tremaine LLP,
Washington, D.C.; Raymond H. Brescia, Associate Professor of
Law, Albany Law School, Albany, New York; Victor A. Kovner,
Davis Wright Tremaine LLP, New York, New York; for Amici
Curiae 165 Members of Congress.
Michael J. Gottlieb, Aaron E. Nathan, Cain Norris, J. Wells
Harrell, Isra Bhatty, and Joshua Riley, Boies Schiller
Flexner LLP, Washington, D.C.; Eli Glasser, Boies Schiller
Flexner LLP, Fort Lauderdale, Florida; for Amici Curiae
Former Federal Immigration and Homeland Security Officials.
J. Pincus and Paul W. Hughes, Mayer Brown LLP, Washington,
D.C., for Amici Curiae Technology Companies.
Nathaniel C. Love and Robert N. Hochman, Sidley Austin LLP,
Chicago, Illinois; Charles Roth, National Immigrant Justice
Center, Chicago, Illinois; for Amicus Curiae National
Immigrant Justice Center; Gail Pendelton, Suffield,
Connecticut, as and for Amicus Curiae ASISTA; Jennie
Santos-Bourne, Miami, Florida, as and for Amicus Curiae
Americans for Immigrant Justice; Linda A. Seabrook, General
Counsel, San Francisco, California, as and for Amicus Curiae
Futures Without Violence; Jean Bruggeman, Arlington,
Virginia, as and for Amicus Curiae Freedom Network USA; Amily
K. McCool, Durham, North Carolina, as and for Amicus Curiae
North Carolina Coalition Against Domestic Violence.
Williams, Bethesda, Maryland, pro se for Amicus Curiae
America First Lawyers Association.
L. Winkelman, Justin Kingsolver, Avi Rutschman, and Luke van
Houwelingen, Crowell & Moring LLP, Washington, D.C., for
Amici Curiae Tahirih Justice Center, The Asian Pacific
Institute on Gender-Based Violence, Casa de Esperanza, and
National Domestic Violence Hotline.
W. Kim, McDermott Will & Emery LLP, Washington, D.C.;
Albert Giang, Rachana Pathak, Meredith S.H. Higashi, Navdeep
Singh, and Tina R. Matsuoka, National Asian Pacific American
Bar Association, Washington, D.C.; for Amicus Curiae National
Asian Pacific American Bar Association.
R. Tobin, Goodsill Anderson Quinn & Stifel LLP, Honolulu,
Hawai'i; Daniel L. McFadden, Christopher E. Hart, Kristyn
DeFilipp, and Michael B. Keating, Foley Hoag LLP, Boston,
Massachusetts, for Amicus Curiae Massachusetts Technology
Leadership Council, Inc.
Gesser, Ilan Stein, Jennifer Prevete, Alex Messiter, Joseph
Garmon, and Kelsey Clark, Davis Polk & Wardwell LLP, New
York, New York, for Amici Curiae Association of Art Museum
Directors, American Alliance of Museums, Association of
Academic Museums and Galleries, College Art Association, and
101 Art Museums.
Herbert W. Titus, Jeremiah L. Morgan, William J. Olson, and
Robert J. Olson, William J. Olson P.C., Vienna, Virginia;
Michael Boos, Citizens United, Washington, D.C.; Joseph W.
Miller, U.S. Justice Foundation, Ramona, California; for
Amici Curiae U.S. Justice Foundation, Citizens United,
Citizens United Foundation, English First Foundation, English
First, Public Advocate of the United States, Gun Owners
Foundation, Gun Owners of America, Conservative Legal Defense
and Education Fund, U.S. Border Control Foundation, and
Policy Analysis Center.
Benjamin G. Shatz, Ketakee Kane, Olufunmilayo Showole,
Matthew Bottomly, Sirena Castillo, John W. McGuinness, and
Amy Briggs, Manatt Phelps & Phillips LLP, Los Angeles,
California, for Amici Curiae Muslim Justice League, Islamic
Circle of North America, and Council of American-Islamic
Loebs Davis, Taylor Washburn, and Jessica N. Walder, Lane
Powell PC, Seattle, Washington, for Amici Curiae Law
F. Masri, National Litigation Director, Council on
American-Islamic Relations, Washington, D.C.; Gadeir I.
Abbas, Law Office of Gadeir Abbas, Washington, D.C.; for
Amici Curiae Muslim Civil Rights Activists Linda Sarsour,
Rashida Tlaib, Zahra Billoo, Basim Elkarra, Hussam Ayloush,
Alia Salem, Adam Soltani, Imraan Siddiqi, Namira Islam, Karen
Dabdoub, Jim Sues, Hanif Mohebi, and Jaylani Hussein.
Sung, Melissa S. Keaney, Nicholas Espíritu, and Karen
C. Tumlin, National Immigration Law Center, Los Angeles,
California; Justin B. Cox, National Immigration Law Center,
Atlanta, Georgia; Mark Doss, Lara Finkbeiner, Stephen
Poellot, and Rebecca Heller, International Refugee Assistance
Project at the Urban Justice Center, New York, New York; for
Amici Curiae National Immigration Law Center and
International Refugee Assistance Project.
Y. Altman, Goodsill Anderson Quinn & Stifel LLP,
Honolulu, Hawai'i; Lilly Landsman-Roos and John B.
Harris, Frankfurt Kurnit Klein & Selz PC, New York, New
York; Michael Lieberman, Melissa Garlick, Lauren A. Jones,
and Steven M. Freeman, Anti-Defamation League, New York, New
York; Doron F. Ezickson, Anti-Defamation League, Washington,
D.C.; Alyssa T. Saunders and David E. Mills, Cooley LLP,
Washington, D.C.; David Bohm, Danna McKintrick P.C., St.
Louis, Missouri; for Amici Curiae Anti-Defamation League,
Jewish Council for Public Affairs, Union for Reform Judaism,
Central Conference of American Rabbis, and Women of Reform
C. Turner, Simpson Thacher & Bartlett LLP, New York, New
York; Jonathan Mincer and Harrison Frahn, Simpson Thacher
& Bartlett LLP, Palo Alto, California; for Amici Curiae
Human Rights First, Kids in Need of Defense (KIND), City Bar
Justice Center, Community Legal Services in East Palo Alto,
Catholic Migration Services, the Door's Legal Services
Center, Safe Passage Project, and Sanctuary for Families.
Matthew E. Sloan, Alyssa J. Clover, Richard A. Schwartz, and
Allison B. Holcombe, Skadden, Arps, Slate, Meagher & Flom
LLP, Los Angeles, California; Jennifer H. Berman and Eric J.
Gorman, Skadden, Arps, Slate, Meagher & Flom LLP,
Chicago, Illinois; Jonathan Fombonne, Sarah Grossnickle, and
Noelle M. Reed, Skadden, Arps, Slate, Meagher & Flom LLP,
Houston, Texas; Joseph M. Sandman, Skadden, Arps, Slate,
Meagher & Flom LLP, Washington, D.C.; Aaron Morris,
Immigration Equality, New York, New York; Virginia M. Goggin,
New York City Gay and Lesbian Anti-Violence Project, New
York, New York; Glenn Magpantay, The National Queer Asian
Pacific Islander Alliance, New York, New York; for Amici
Curiae Immigration Equality, New York City Gay and Lesbian
Anti-Violence Project, and National Queer Asian Pacific
Lincoln Sarko, Alison S. Gaffney, Derek W. Loeser, Amy
Williams-Derry, and Tana Lin, Keller Rohrback L.L.P.,
Seattle, Washington; La Rond Baker and Emily Chiang, American
Civil Liberties Union of Washington Foundation, Seattle,
Washington; Laurie B. Ashton, Keller Rohrback L.L.P.,
Phoenix, Arizona; Alison Chase, Keller Rohrback L.L.P., Santa
Barbara, California; for Amici Curiae Joseph Doe, James Doe,
and the Episcopal Diocese of Olympia.
Patricia S. Rose, Seattle, Washington, for Amici Curiae One
Million Kids for Equality and African Human Rights Coalition.
Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A.
Paez, Circuit Judges.
asked to delineate the statutory and constitutional limits to
the President's power to control immigration in this
appeal of the district court's order preliminarily
enjoining two sections of Executive Order 13780
("EO2" or "the Order"), "Protecting
the Nation From Foreign Terrorist Entry Into the United
States." The Immigration and Nationality Act
("INA") gives the President broad powers to control
the entry of aliens, and to take actions to protect the
American public. But immigration, even for the President, is
not a one-person show. The President's authority is
subject to certain statutory and constitutional restraints.
We conclude that the President, in issuing the Executive
Order, exceeded the scope of the authority delegated to him
by Congress. In suspending the entry of more than 180 million
nationals from six countries, suspending the entry of all
refugees, and reducing the cap on the admission of refugees
from 110, 000 to 50, 000 for the 2017 fiscal year, the
President did not meet the essential precondition to
exercising his delegated authority: The President must make a
sufficient finding that the entry of these classes of people
would be "detrimental to the interests of the United
States." Further, the Order runs afoul of other
provisions of the INA that prohibit nationality-based
discrimination and require the President to follow a specific
process when setting the annual cap on the admission of
refugees. On these statutory bases, we affirm in large part
the district court's order preliminarily enjoining
Sections 2 and 6 of the Executive Order.
week after inauguration and without interagency review,
President Donald J. Trump issued Executive Order 13769
("EO1"). Exec. Order No. 13769, 82 Fed. Reg. 8977
(Jan. 27, 2017). Entitled "Protecting the Nation From
Foreign Terrorist Entry Into the United States, "
EO1's stated purpose was to "protect the American
people from terrorist attacks by foreign nationals admitted
to the United States." Id. EO1 recited that
"[n]umerous foreign-born individuals have been convicted
or implicated in terrorism-related crimes since September 11,
2001, including foreign nationals who entered the United
States after receiving visitor, student, or employment visas,
or who entered through the United States refugee resettlement
mandated two main courses of action to assure that the United
States remain "vigilant during the visa-issuance process
to ensure that those approved for admission do not intend to
harm Americans and that they have no ties to terrorism."
Id. In Section 3, the President invoked his
authority under 8 U.S.C. § 1182(f) to suspend for 90
days immigrant and nonimmigrant entry into the United States
of nationals from seven majority-Muslim countries: Iraq,
Iran, Libya, Sudan, Somalia, Syria, and Yemen. See
id. at 8978. In Section 5, the President immediately
suspended the U.S. Refugee Admissions Program
("USRAP") for 120 days, imposed a ban of indefinite
duration on the entry of refugees from Syria, and limited the
entry of refugees to 50, 000 in fiscal year 2017.
Id. at 8979. EO1 also ordered that changes be made
to the refugee screening process "to prioritize refugee
claims made by individuals on the basis of religious-based
persecution, provided that the religion of the individual is
a minority religion in the individual's country of
nationality." Id. EO1 permitted the Secretaries
of State and Homeland Security to make case-by-case
exceptions to these restrictions "when in the national
interest, " and explained that it would be in the
national interest "when the person is a religious
minority in his country of nationality facing religious
took immediate effect, causing great uncertainty as to the
scope of the order, particularly in its application to lawful
permanent residents. Notably, federal officials themselves
were unsure as to the scope of EO1, which caused mass
confusion at airports and other ports of entry. See
Brief of the Foundation of Children of Iran and Iranian
Alliance Across Borders as Amici Curiae, Dkt. No. 77 at 11-12
(describing how an Iranian visa holder was turned away while
en route to the United States because of the confusion
regarding the contours of EO1's scope); Brief of Former
National Security Officials as Amici Curiae, Dkt. No. 108 at
25 n.53 & 54 (noting confusion at airports because
officials were neither consulted nor informed of EO1 in
after EO1 issued, the States of Washington and Minnesota
filed suit in the Western District of Washington to enjoin
EO1. On February 3, 2017, the district court granted a
temporary restraining order ("TRO"). Washington
v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash.
Feb. 3, 2017). On February 4, 2017, the Government filed an
emergency motion in our court, seeking a stay of the TRO
February 9, 2017, this court denied the Government's
emergency motion for a stay of the injunction. Washington
v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam),
reconsideration en banc denied, 853 F.3d 933 (9th
Cir. 2017). In so doing, the panel rejected the
Government's arguments that EO1 was wholly unreviewable.
See id. at 1161-64. After determining that the
states had standing based on the alleged harms to their
proprietary interests, id. at 1159-61, this court
concluded that the states demonstrated a likelihood of
success on their procedural due process claim, at least as to
lawful permanent residents and nonimmigrant visa holders,
id. at 1164-66. The panel did not review the
states' other claims, including the statutory-based
claims. Id. at 1164.
than continue with the litigation, the Government filed an
unopposed motion to voluntarily dismiss the underlying appeal
after the President signed EO2. On March 8, 2017, this court
granted that motion, which substantially ended the story of
EO1. The curtain opens next to the present controversy
March 6, 2017, the President issued EO2, also entitled
"Protecting the Nation From Foreign Terrorist Entry Into
the United States." Exec. Order No. 13780, 82 Fed. Reg.
13209 (Mar. 6, 2017). The revised Order was to take effect on
March 16, 2017, at which point EO1 would be revoked.
Id. at 13218. The Order expressly stated that EO1
"did not provide a basis for discriminating for or
against members of any particular religion" and was
"not motivated by animus toward any religion."
Id. at 13210.
2-"Temporary Suspension of Entry for Nationals of
Countries of Particular Concern During Review
Period"-reinstates the 90-day ban on travel for
nationals of six of the seven majority-Muslim countries
identified in EO1: Iran, Libya, Somalia, Sudan, Syria, and
Yemen. Id. at 13213. Section 2 also directs the
Secretary of Homeland Security, the Secretary of State, and
the Director of National Intelligence to "conduct a
worldwide review to identify whether, and if so what,
additional information will be needed from each foreign
country to adjudicate an application by a national of that
country for a visa, admission, or other benefit under the INA
(adjudications) in order to determine that the individual is
not a security or public-safety threat." Id. at
13212. Section 2(c) states in full:
To temporarily reduce investigative burdens on relevant
agencies during the review period described in subsection (a)
of this section, to ensure the proper review and maximum
utilization of available resources for the screening and
vetting of foreign nationals, to ensure that adequate
standards are established to prevent infiltration by foreign
terrorists, and in light of the national security concerns
referenced in section 1 of this order, I hereby proclaim,
pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C.
[§§] 1182(f) and 1185(a), that the unrestricted
entry into the United States of nationals of Iran, Libya,
Somalia, Sudan, Syria, and Yemen would be detrimental to the
interests of the United States. I therefore direct that the
entry into the United States of nationals of those six
countries be suspended for 90 days from the effective date of
this order, subject to the limitations, waivers, and
exceptions set forth in sections 3 and 12 of this order.
Id. at 13213.
Regarding the six identified countries, EO2 explains:
Each of these countries is a state sponsor of terrorism, has
been significantly compromised by terrorist organizations, or
contains active conflict zones. Any of these circumstances
diminishes the foreign government's willingness or
ability to share or validate important information about
individuals seeking to travel to the United States. Moreover,
the significant presence in each of these countries of
terrorist organizations, their members, and others exposed to
those organizations increases the chance that conditions will
be exploited to enable terrorist operatives or sympathizers
to travel to the United States. Finally, once foreign
nationals from these countries are admitted to the United
States, it is often difficult to remove them, because many of
these countries typically delay issuing, or refuse to issue,
Id. at 13210. Based on the conditions of these six
countries, "the risk of erroneously permitting entry of
a national of one of these countries who intends to commit
terrorist acts or otherwise harm the national security of the
United States is unacceptably high." Id. at
Order states that it no longer includes Iraq on the list of
designated countries because of Iraq's "close
cooperative relationship" with the United States and its
recent efforts to enhance its travel documentation
procedures. Id. at 13212. The Order also states that
its scope has been narrowed from EO1 in response to
"judicial concerns" about the suspension of entry
with respect to certain categories of aliens. Id.
EO2 applies only to individuals outside of the United States
who do not have a valid visa as of the issuance of EO1 or
EO2. EO2, unlike EO1, expressly exempts lawful permanent
residents, dual citizens traveling under a passport issued by
a country not on the banned list, asylees, and refugees
already admitted to the United States. See id. at
13213-14. The Order also provides that consular officers or
Customs and Border Protection officials can exercise
discretion in authorizing case-by-case waivers to issue visas
and grant entry during the suspension period, and offers
examples of when waivers "could be appropriate."
See id. at 13214-15.
6-"Realignment of the U.S. Refugee Admissions Program
for Fiscal Year 2017"-suspends USRAP for 120 days.
Id. at 13215. During this period, the heads of
certain executive agencies are directed to review the current
USRAP application and adjudication processes, and to
determine the additional procedures that "should"
be required for individuals seeking admission as refugees.
See id. at 13215-16. Invoking 8 U.S.C. §
1182(f), Section 6(b) reduces the number of refugees to be
admitted from 110, 000 to 50, 000 in fiscal year 2017.
Id. at 13216. The Order also removes EO1's
preference for refugees facing persecution as a member of a
minority religion, and no longer imposes a complete ban on
Syrian refugees. Section 6 further provides for discretionary
case-by-case waivers. Id.
supplies additional information relevant to national security
concerns. The Order includes excerpts from the State
Department's 2015 Country Reports on Terrorism, that it
asserts demonstrate "why . . . nationals [from the
designated countries] continue to present heightened risk to
the security of the United States." Id. at
13210; see id. at 13210-11 (providing a brief
description of country conditions for each of the designated
countries). The Order states that foreign nationals and
refugees have committed acts of terrorism:
Recent history shows that some of those who have entered the
United States through our immigration system have proved to
be threats to our national security. Since 2001, hundreds of
persons born abroad have been convicted of terrorism-related
crimes in the United States. They have included not just
persons who came here legally on visas but also individuals
who first entered the country as refugees. For example, in
January 2013, two Iraqi nationals admitted to the United
States as refugees in 2009 were sentenced to 40 years and to
life in prison, respectively, for multiple terrorism-related
offenses. And in October 2014, a native of Somalia who had
been brought to the United States as a child refugee and
later became a naturalized United States citizen was
sentenced to 30 years in prison for attempting to use a
weapon of mass destruction as part of a plot to detonate a
bomb at a crowded Christmas-tree-lighting ceremony in
Portland, Oregon. The Attorney General has reported to me
that more than 300 persons who entered the United States as
refugees are currently the subjects of counterterrorism
investigations by the Federal Bureau of Investigation.
Id. at 13212. EO2 does not discuss any instances of
domestic terrorism involving nationals from Iran, Libya,
Sudan, Syria, or Yemen.
versions of a report from the Department of Homeland Security
("DHS") surfaced after EO1 issued. First, a draft
report from DHS, prepared about one month after EO1 issued
and two weeks prior to EO2's issuance, concluded that
citizenship "is unlikely to be a reliable indicator of
potential terrorist activity" and that citizens of
countries affected by EO1 are "[r]arely [i]mplicated in
U.S.-[b]ased [t]errorism." Specifically, the DHS report
determined that since the spring of 2011, at least eighty-two
individuals were inspired by a foreign terrorist group to
carry out or attempt to carry out an attack in the United
States. Slightly more than half were U.S. citizens born in
the United States, and the remaining persons were from
twenty-six different countries-with the most individuals
originating from Pakistan, followed by Somalia, Bangladesh,
Cuba, Ethiopia, Iraq, and Uzbekistan. Id. Of the six
countries included in EO2, only Somalia was identified as
being among the "top" countries-of-origin for the
terrorists analyzed in the report. During the time period
covered in the report, three offenders were from Somalia; one
was from Iran, Sudan, and Yemen each; and none was from Syria
or Libya. The final version of the report, issued five days
prior to EO2, concluded "that most foreign-born,
[U.S.]-based violent extremists likely radicalized several
years after their entry to the United States, [thus]
limiting the ability of screening and vetting officials to
prevent their entry because of national security
concerns" (emphasis added).
same day EO2 issued, Attorney General Jefferson B. Sessions
III and Secretary of Homeland Security John F. Kelly
submitted a letter to the President recommending that he
"direct a temporary pause in entry" from
countries that are "unable or unwilling to provide the
United States with adequate information about their
nationals" or are designated as "state sponsors of
State of Hawai'i ("the State") filed a motion
for a TRO seeking to enjoin EO1, which the District of
Hawai'i did not rule on because of the nationwide TRO
entered in the Western District of Washington. After EO2
issued, the State filed an amended complaint challenging EO2
in order "to protect its residents, its employers, its
educational institutions, and its sovereignty." Dr.
Elshikh, the Imam of the Muslim Association of Hawai'i,
joined the State's challenge because the Order
"inflicts a grave injury on Muslims in Hawai'i,
including Dr. Elshikh, his family, and members of his
Mosque." In 2015, Dr. Elshikh's wife filed an I-130
Petition for Alien Relative on behalf of her mother- Dr.
Elshikh's mother-in-law-a Syrian national living in
Syria. Dr. Elshikh fears that his mother-in-law will not be
able to enter the United States if EO2 is implemented.
Plaintiffs named as Defendants Donald J. Trump, in his
official capacity as President of the United States; the U.S.
Department of Homeland Security; John F. Kelly, in his
official capacity as Secretary of Homeland Security; the U.S.
Department of State; Rex W. Tillerson, in his official
capacity as Secretary of State; and the United States of
America (collectively referred to as "the
allege that EO2 suffers similar constitutional and statutory
defects as EO1 and claim that the Order violates: the
Establishment Clause of the First Amendment; the equal
protection guarantees of the Fifth Amendment's Due
Process Clause on the basis of religion and/or national
origin, nationality, or alienage; the Due Process Clause of
the Fifth Amendment based on substantive due process rights;
the Due Process Clause of the Fifth Amendment based on
procedural due process rights; the Immigration and
Nationality Act; the Religious Freedom Restoration Act; and
the Administrative Procedure Act. For their INA claim,
Plaintiffs specifically contend that EO2 violates the INA by
discriminating on the basis of nationality, ignoring and
modifying the statutory criteria for determining
terrorism-related inadmissibility, and exceeding the
President's delegated authority under the
Plaintiffs also filed a motion for a TRO along with their
March 15, 2017, the district court granted the TRO, holding
that Plaintiffs had shown a likelihood of success on the
merits of their Establishment Clause claim, and entered a
nationwide injunction prohibiting enforcement of Sections 2
and 6 of EO2. See Hawai'i v. Trump, No. CV
17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)
("Hawai'i TRO"). On March 29, 2017,
the district court granted Plaintiffs' motion to convert
the TRO to a preliminary injunction. See Hawai'i v.
Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1167383 (D. Haw.
Mar. 29, 2017) ("Hawai'i PI"). The
district court declined to narrow the scope of the
injunction, concluding that the entirety of Sections 2 and 6
of the Order ran afoul of the Establishment Clause and that
the Government did not provide a workable framework for
narrowing the scope of the enjoined conduct. See id.
at *8. The court 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 ...