Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 1 of 53

No. 17-16426

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF HAWAII; ISMAIL ELSHIKH,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; DEPARTMENT
OF HOMELAND SECURITY; DEPARTMENT OF STATE; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as
Secretary of State; UNITED STATES OF AMERICA,
Defendants – Appellants.
On Appeal from the United States District Court
for the District of Hawaii
(1:17-cv-00050-DKW-KSC)
BRIEF FOR APPELLANTS

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
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7250
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-2689

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 2 of 53

TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
STATEMENT OF JURISDICTION......................................................................... 3
STATEMENT OF THE ISSUES.............................................................................. 3
STATEMENT OF THE CASE ................................................................................. 4
A.

Executive Order 13,780 and Initial District Court Proceedings ...........4

B.

This Court’s Decision in Hawaii v. Trump ...........................................5

C.

Proceedings in International Refugee Assistance Project v.
Trump ....................................................................................................7

D.

Proceedings in the Supreme Court ........................................................8

E.

Proceedings Following the Supreme Court’s Stay Ruling..................12

SUMMARY OF ARGUMENT .............................................................................. 18
STANDARD OF REVIEW .................................................................................... 20
ARGUMENT .......................................................................................................... 21
I.

THE DISTRICT COURT ERRED IN HOLDING THAT A “BONA
FIDE RELATIONSHIP” TO A U.S. ENTITY EXISTS FOR EVERY
REFUGEE FOR WHOM A RESETTLEMENT AGENCY HAS
PROVIDED AN ASSURANCE .................................................................. 21

II.

THE DISTRICT COURT ERRED IN HOLDING THAT, UNDER THE
SUPREME COURT’S STAY DECISION, A “CLOSE FAMILIAL
RELATIONSHIP” WITH A U.S. INDIVIDUAL INCLUDES ANY
SIBLING-IN-LAW, COUSIN, AUNT, UNCLE, NIECE, NEPHEW,
GRANDPARENT, OR GRANDCHILD ..................................................... 29

CONCLUSION ....................................................................................................... 42

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 3 of 53

STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ii

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 4 of 53

TABLE OF AUTHORITIES
Cases: .............................................................................................................. Page(s)
Air Courier Conference of Am. v. American Postal Workers Union, AFL-CIO,
498 U.S. 517 (1991) .......................................................................................25, 26
Corley v. United States, 556 U.S. 303 (2009).......................................................... 27
Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) ................................................5, 6, 7
Hawaii v. Trump, No. 17-16366, Order (9th Cir. Jul. 7, 2017) ............................... 15
Hedges v. Dixon County, 150 U.S. 182 (1893)........................................................ 32
In re Shoreline Concrete Co., 831 F.2d 903 (9th Cir. 1987) ................................... 32
In re Tronox Inc., 855 F.3d 84 (2d Cir. 2017) ......................................................... 28
IRAP v. Trump, 2017 WL 1018235 (D. Md. Mar. 15, 2017) ................................ 7, 8
IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) ........................................................... 8
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................... 33
Moore v. City of East Cleveland, 431 U.S. 494 (1977) ........................................... 33
Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) .......................................... 25
Natural Resources Defense Council Inc. v. Southwest Marine, Inc.,
242 F.3d 1163 (9th Cir. 2001) ............................................................................. 21
Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867
(9th Cir. 2013) ...................................................................................................... 21
Reno v. Flores, 507 U.S. 292 (1993) ....................................................................... 36
Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014) .......................31, 34, 37, 38
Shell v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) ....................................... 20
Troxel v. Granville, 530 U.S. 57 (2000) .................................................................. 33

iii

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 5 of 53

Trump v. IRAP, 137 S. Ct. 2080 (2017) ............................................................passim
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ............................................... 4
Statutes:
Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.:
8 U.S.C. § 1101(a)(15)(K)....................................................................................32
8 U.S.C. § 1101(b)(1) ...........................................................................................32
8 U.S.C. § 1101(b)(2) ...........................................................................................32
8 U.S.C. § 1151(b)(2)(A)(i)........................................................................... 32, 36
8 U.S.C. § 1152(a)(1)(A)........................................................................................6
8 U.S.C. § 1153(a) ................................................................................... 32, 36, 37
8 U.S.C. § 1153(b) ................................................................................................37
8 U.S.C. § 1154 ....................................................................................................37
8 U.S.C. § 1154(a) ................................................................................................37
8 U.S.C. § 1157 ......................................................................................................6
8 U.S.C. § 1182(a)(3)(D)(iv) ................................................................................34
8 U.S.C. § 1182(a)(6)(E)(ii) .................................................................................34
8 U.S.C. § 1182(a)(9)(B)(v) .................................................................................34
8 U.S.C. § 1182(d)(12) .........................................................................................35
8 U.S.C. § 1182(f) ..................................................................................................6
8 U.S.C. § 1182(g)(1) ...........................................................................................35
8 U.S.C. § 1182(h)(1)(B)......................................................................................35
8 U.S.C. § 1182(i).................................................................................................35
8 U.S.C. § 1183a...................................................................................................38
8 U.S.C. § 1183a(f)(1)(D) ....................................................................................37
8 U.S.C. § 1183a(f)(4) ..........................................................................................37
8 U.S.C. § 1183a(f)(5)(B)(i) .................................................................................37
8 U.S.C. § 1183a(f)(5)(B)(ii)................................................................................37
8 U.S.C. § 1184(d) ................................................................................................32
8 U.S.C. § 1433(a) ................................................................................................38
28 U.S.C. § 1292(a)(1) ...............................................................................................3
28 U.S.C. § 1331 ........................................................................................................3
Family Sponsor Immigration Act of 2002, Pub. L. No. 107-150, § 2(A),
116 Stat. 74 ...........................................................................................................36

iv

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 6 of 53

National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 1243(a)(4), 122 Stat. 396 (codified as amended at 8 U.S.C. § 1157 note) .......36
Pub. L. No. 107-56, § 421(b)(3), 115 Stat. 272 .......................................................38
Regulations:
8 C.F.R. § 207.7 .......................................................................................................35
8 C.F.R. § 213a.1 .....................................................................................................37
8 C.F.R. § 236.3(b)(1)(iii) ........................................................................................36
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ........................ passim
69 Fed. Reg. 69,480 (Nov. 29, 2004) ......................................................................38
71 Fed. Reg. 35,732 (June 21, 2006) .......................................................................37
81 Fed. Reg. 92,266 (Dec. 19, 2006) .......................................................................38
Other Authorities:
Bureau of Consular Affairs, U.S. Dep’t of State, Important Announcement:
Executive Order on Visas,
https://travel.state.gov/content/travel/en/news/important-announcement.html ...13
Bureau of Population, Refugees, and Migration, U.S. Dep’t of State, Fact Sheet:
Information Regarding the U.S. Refugee Admission Program,
https://state.gov/j/prm/releases/factsheets/2017/272316.htm ..............................13
Dep’t of Homeland Sec., Frequently Asked Questions on Protecting the Nation
from Foreign Terrorist Entry into the United States,
https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protectingnation-foreign-terrorist-entry-united-states ..........................................................13
Richard A. Lord, Williston on Contracts (4th ed. 2012) .........................................29
Presidential Memorandum for the Secretary of State, the Attorney General, the
Secretary of Homeland Security, and the Director of National Intelligence, 82
Fed. Reg. 27,965 (June 14, 2017).........................................................................12

v

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 7 of 53

U.S. Dep’t of State, Foreign Affairs Manual (2016) ...............................................32

vi

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 8 of 53

INTRODUCTION
Notwithstanding the Supreme Court’s decision to grant review and to stay in
significant part the preliminary injunction that this Court previously affirmed
against certain sections of Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6,
2017), see Trump v. IRAP, 137 S. Ct. 2080 (2017), the district court has now
entered a modified injunction that contravenes the Supreme Court’s decision.
Although the district court purported to be enforcing its injunction as partially
stayed, it instead adopted constructions of the Supreme Court’s stay that conflict
with the Court’s ruling, and that dramatically expand the scope of the injunction
the Court equitably allowed to remain standing pending review. The modified
injunction is the result of legal error, and should be vacated by this Court.
First, the Supreme Court limited the preliminary injunction of Sections 2(c),
6(a) and 6(b) of the Order to aliens with a “credible claim of a bona fide
relationship” to a U.S. person or entity. IRAP, 137 S. Ct. at 2088. The district
court has essentially eliminated that requirement for refugees by enjoining Sections
6(a) and (b) with respect to any refugee for whom the Department of State has
received an “assurance” from a U.S.-based resettlement organization. An
assurance is a commitment to provide certain services and assistance that is made
pursuant to an agreement between the resettlement organization and the
Department of State, not the refugee. Such an agreement between the government

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 9 of 53

and the organization does not create a “bona fide relationship” between the
organization and the refugee—in fact, the resettlement organization typically has
no contact with the refugee at all prior to the refugee’s arrival in the United States.
Furthermore, the Department of State enters into an agreement with a resettlement
agency to provide assistance for every prospective refugee before the refugee
comes to the United States. Treating an “assurance” as providing a qualifying
“bona fide relationship” between the U.S.-based resettlement organization and the
refugee largely nullifies the Supreme Court’s limitation of the original injunction
in this respect.
Second, the Supreme Court ruled that the alien abroad must have “a close
familial relationship” with a U.S. person to satisfy the “bona fide relationship”
standard based on a relationship to a U.S. individual. IRAP, 137 S. Ct. at 2088
(emphasis added). The district court has again essentially eliminated that
requirement by requiring the government to treat a wide variety of extended family
members as “close,” including siblings-in-law, cousins, nieces, nephews, aunts,
uncles, grandparents, and grandchildren. That expansive definition of “close”
family members includes all but the most distant family members. It is
inconsistent with the language and reasoning of the Supreme Court’s stay ruling,
the most relevant provisions of the Immigration and Nationality Act (INA), and the
facts before the Supreme Court. The district court’s modified injunction should be

2

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 10 of 53

vacated in this respect as well. At a minimum, even if the Court were to conclude
that some of those family relationships are covered, it should not compel the
government to include all of them.
STATEMENT OF JURISDICTION
Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. § 1331.
Excerpts of Record (“E.R.”) 4. On July 13, 2017, the district court entered an
order modifying its prior preliminary injunction. E.R. 207. Defendants filed a
timely notice of appeal on July 14, 2017. E.R. 233. This Court has jurisdiction
over this appeal pursuant to 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES
1. Whether the district court erred in holding that, under the Supreme
Court’s stay decision, a “bona fide relationship” to a U.S. entity exists for every
refugee for whom the Department of State has obtained an assurance from a U.S.based resettlement agency.
2. Whether the district court erred in holding that, under the Supreme
Court’s stay decision, a “close familial relationship” with a U.S. individual
includes any sibling-in-law, cousin, aunt, uncle, niece, nephew, grandparent, or
grandchild.

3

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 11 of 53

STATEMENT OF THE CASE
A.

Executive Order 13,780 and Initial District Court Proceedings.
On March 6, 2017, the President issued Executive Order No. 13,780,

Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed.
Reg. 13,209 (Mar. 6, 2017). Executive Order No. 13,780 revoked and replaced an
earlier executive order that was previously challenged in this Court. See
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
Section 2(c) of the Order suspends for 90 days entry of certain nationals of
six countries that present heightened terrorism-related risks, subject to case-bycase waivers under Section 3(c). 82 Fed. Reg. at 13,213, 13,214-15. Section 6(a)
suspends for 120 days adjudications and travel under the United States Refugee
Admission Program (Refugee Program). Id. at 13,215-16. Section 6(b) limits to
50,000 the number of persons who may be admitted as refugees in Fiscal Year
2017. Id. at 13,216.
The State of Hawaii and Dr. Ismail Elshikh brought suit in district court in
Hawaii, alleging that Sections 2 and 6 of the Order exceed the President’s statutory
authority and also violate due process and the Establishment Clause. E.R. 33-37.
Hawaii alleged that the Order would adversely affect students and faculty at its
state-run educational institutions, reduce tourism, and damage the public welfare.
E.R. 28-33. Dr. Elshikh, a U.S. citizen who is married to a U.S. citizen and lives

4

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 12 of 53

with his wife and children in Hawaii, alleged that his Syrian mother-in-law lacked
a visa to enter the country and accordingly could not visit family members in
Hawaii. E.R. 27-28.
The district court entered a nationwide TRO barring enforcement of Sections
2 and 6 of the Order in their entirety. E.R. 46. The court reasoned that Dr. Elshikh
had Article III standing to bring an Establishment Clause claim based on his
allegation that he was deeply upset by the Order’s allegedly discriminatory
message. E.R. 67-70. The district court also held that plaintiffs were likely to
succeed on the merits of that claim, and that the balance of harms supported a
TRO. E.R. 85-87. The district court subsequently converted the TRO to a
preliminary injunction. E.R. 89.
B.

This Court’s Decision in Hawaii v. Trump.
On appeal, this Court affirmed in part and vacated in part the preliminary

injunction. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Court declined to
reach the question whether plaintiffs were likely to prevail on their Establishment
Clause claim, instead ruling that they were likely to prevail on their statutory
claim. Id. at 762, 782.
The Court held that Dr. Elshikh, who “seeks to reunite his mother-in-law
with his family and similarly experiences prolonged separation from her,” had
standing to challenge the Order on statutory grounds, and that Hawaii had standing

5

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 13 of 53

based on injuries inflicted on its university from the exclusion of students and
faculty pursuant to Section 2(c) of the Order, as well as harms resulting from its
inability to resettle refugees as a result of the refugee-related provisions of the
Order. 859 F.3d at 763-67.
On the merits, the Court held that, although 8 U.S.C. § 1182(f) “gives the
President broad authority to suspend the entry of aliens or classes of aliens,” the
statute “requires that the President find that the entry of a class of aliens into the
United States would be detrimental to the interests of the United States.” 859 F.3d
at 770 (emphasis in court’s opinion). The Court held that “[t]here is no sufficient
finding in [Executive Order 13,780] that the entry of the excluded classes [pursuant
to Section 2(c) of the Order] would be detrimental to the interests of the United
States.” Id. The Court similarly concluded that there was not a sufficient
justification in the Order to “support a finding that the travel and admission of
refugees would be detrimental to the interests of the United States,” or that “entry
of more than 50,000 refugees this same fiscal year would be detrimental to the
national interest.” Id. at 775-76.
The Court also held that plaintiffs had a likelihood of success on their claims
that Section 2(c)’s suspension of issuance of visas violates 8 U.S.C.
§ 1152(a)(1)(A), and that Section 6(b)’s refugee cap contravenes 8 U.S.C. § 1157.
859 F.3d at 779, 781. The Court concluded that plaintiffs had made a sufficient

6

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 14 of 53

equitable showing to warrant entry of a preliminary injunction, although the Court
vacated the injunction as it applied to the President himself and as to “the inwardfacing tasks of Section 2 and 6,” i.e., those provisions that required “internal
review procedures that do not burden individuals outside of the executive branch
of the federal government.” Id. at 782-84, 786.
C.

Proceedings in International Refugee Assistance Project v. Trump.
Executive Order 13,780 was also challenged in U.S. District Court for the

District of Maryland, in International Refugee Assistance Project v. Trump, No.
8:17-cv-00361-TDC (“IRAP”).
The individual plaintiffs in IRAP are U.S. citizens or lawful permanent
residents who alleged that the Order would prevent or delay a foreign-national
family member from entering the United States. As relevant here, John Doe #1
alleged that Section 2(c) would prevent his wife from obtaining a visa. The Order
was also challenged by three organizational plaintiffs.
The district court held that John Doe #1 had standing to assert an
Establishment Clause claim against Section 2(c) and was likely to succeed on the
merits. IRAP v. Trump, 2017 WL 1018235 (D. Md. Mar. 15, 2017). The court
entered a preliminary injunction barring any enforcement of Section 2(c). Id. at
*17-18. The district court declined, however, to decide whether other plaintiffs,

7

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 15 of 53

including the organizational plaintiffs, had standing, and also declined to enjoin the
refugee provisions of the Order, Sections 6(a) and (b). Id. at *8, *17.
The government appealed, and a divided en banc Fourth Circuit largely
affirmed the injunction of Section 2(c) of the Order. IRAP v. Trump, 857 F.3d 554
(4th Cir. 2017). The majority held that John Doe #1 had standing to raise an
Establishment Clause claim, and that he was likely to prevail on the merits of that
claim. Id. at 586, 601. The court denied a stay pending further review. Id. at 606.
D.

Proceedings in the Supreme Court.
Following the en banc Fourth Circuit’s decision in IRAP, the government

filed a petition for certiorari as well as an application for a stay of the injunction in
that case. Trump v. IRAP, No. 16A1190 (S. Ct.).
In addition, the government filed an application with the Supreme Court
seeking a stay of the preliminary injunction entered by the Hawaii district court in
this litigation, pending this Court’s consideration and disposition of the
government’s appeal from that injunction and, if this Court affirmed, pending the
filing and disposition of a petition for a writ of certiorari in the Supreme Court.
See Trump v. Hawaii, No. 16A1191 (S. Ct.). At the time the stay application was
filed in the Supreme Court, this Court had not yet ruled on the government’s stay
motion or on the merits of the appeal in this litigation. The government’s stay

8

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 16 of 53

application noted that the Court could construe the application as a petition for a
writ of certiorari before judgment and grant review in this case as well as in IRAP.
This Court subsequently decided the appeal in Hawaii v. Trump, and granted
the parties’ joint motion for expedited issuance of the mandate. The government
then filed a supplemental memorandum in the Supreme Court, renewing its request
for a stay and urging the Court to grant certiorari in both this case and in IRAP and
to hear the cases in tandem.
On June 26, 2017, the Supreme Court granted certiorari both in IRAP and in
this case. The Court’s per curiam order also granted in part the stay applications in
the two cases. IRAP, 137 S. Ct. at 2083.
The Supreme Court explained that “[c]rafting a preliminary injunction is an
exercise of discretion and judgment, often dependent as much on the equities of a
given case as the substance of the legal issues it presents,” and further that the
purpose of interim equitable relief “is not to conclusively determine the rights of
the parties, * * * but to balance the equities as the litigation moves forward.”
IRAP, 137 S. Ct. at 2087.
The Court noted that this Court and the Fourth Circuit had concluded that
the hardships imposed on Dr. Elshikh, Hawaii, and John Doe #1 as a result of
enforcement of Section 2(c) of the Order “were sufficiently weighty and immediate
to outweigh the Government’s interest in enforcing” that provision, and that the

9

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 17 of 53

injunction had also been extended to “parties similarly situated to them—that is,
people or entities in the United States who have relationships with foreign
nationals abroad, and whose rights might be affected if those foreign nationals
were excluded.” 137 S. Ct. at 2087.
The Supreme Court recognized, however, that “the injunctions reach much
further than that” to “bar enforcement of § 2(c) against foreign nationals abroad
who have no connection to the United States at all.” 137 S. Ct. at 2088. The Court
reasoned that “[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,”
and that the courts had not concluded “that exclusion in such circumstances would
impose any legally relevant hardship on the foreign national himself.” Id.
Conversely, “the Government’s interest in enforcing § 2(c), and the Executive’s
authority to do so, are undoubtedly at their peak when there is no tie between the
foreign national and the United States.” Id. The Court specifically noted that the
Order itself, in the waiver provisions in Sections 3(c)(i)-(vi), “distinguishes
between foreign nationals who have some connection to this country, and foreign
nationals who do not.” Id.
The Supreme Court accordingly narrowed the scope of the injunctions as to
§2(c):
The injunctions remain in place only with respect to parties similarly
situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that
10

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 18 of 53

§ 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.
137 S. Ct. at 2088.
The Court explained that “[t]he facts of these cases illustrate the sort of
relationship that qualifies.” 137 S. Ct. at 2088. “For individuals, a close familial
relationship is required.” Id. (emphasis added). The Court cited as an example
“[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.” Id. “As for
entities,” the Court explained, “the relationship must be formal, documented, and
formed in the ordinary course, rather than for the purpose of evading [the Order].”
Id. The Court gave as examples “[t]he students from the designated countries who
have been admitted to the University of Hawaii,” “a worker who accepted an offer
of employment from an American company,” and “a lecturer invited to address an
American audience.” Id. By contrast, “a nonprofit group devoted to immigration
issues may not contact foreign nationals from the designated countries, add them to
client lists, and then secure their entry by claiming injury from their exclusion.”
Id.
The Supreme Court also granted a partial stay of the injunction affirmed by
this Court with respect to Sections 6(a) and (b). IRAP, 137 S. Ct. at 2089. The
Court ruled that Sections 6(a) and (b) “may not be enforced against an individual
seeking admission as a refugee who can credibly claim a bona fide relationship
11

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 19 of 53

with a person or entity in the United States.” Id. “As applied to all other
individuals,” however, the Supreme Court held that “the provisions may take
effect.” Id. As the Court explained, “when it comes to refugees who lack any such
connection to the United States * * *, the balance tips in favor of the Government’s
compelling need to provide for the Nation’s security.” Id.
E.

Proceedings Following the Supreme Court’s Stay Ruling.
On June 14, 2017, the President had issued a memorandum to Executive

Branch officials clarifying that the effective date of the enjoined provisions of the
Executive Order would “be the date on which the injunctions in these cases ‘are
lifted or stayed with respect to that provision.’” IRAP, 137 S. Ct. at 2085 (quoting
Presidential Memorandum for the Secretary of State, the Attorney General, the
Secretary of Homeland Security, and the Director of National Intelligence, 82 Fed.
Reg. 27,965 (June 14, 2017) (Presidential Memorandum)). The Presidential
Memorandum directed the relevant agencies to “begin implementation of each
relevant provision of sections 2 and 6 of the [Order] 72 hours after all applicable
injunctions are lifted or stayed with respect to that provision.” 82 Fed. Reg. at
27,966.
The Departments of State and Homeland Security accordingly began
implementing Sections 2(c), 6(a), and 6(b) of the Order three days after issuance of
the Supreme Court’s stay, on June 29, 2017, and commenced enforcement of those

12

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 20 of 53

provisions at 8:00 p.m. Eastern Daylight Time on that day. In order to implement
within 72 hours the Supreme Court’s limitation of the injunction to individuals
“who can credibly claim a bona fide relationship with a person or entity in the
United States”—a standard that the Supreme Court had developed sua sponte—the
agencies published public guidance, E.R. 176, 180, 182, which was subsequently
updated and current versions of which are available online.1
On June 29, 2017, plaintiffs filed an emergency motion in district court to
“clarify” the scope of its injunction in light of the Supreme Court’s stay ruling. As
relevant here, they urged the district court to interpret the ruling to exempt from the
Order two broad categories of aliens.
First, plaintiffs argued that the stay ruling exempts from Sections 6(a) and
6(b) all refugee applicants for whom the State Department has obtained an
assurance from a U.S.-based refugee-resettlement agency. An assurance is a
contractual commitment between a refugee resettlement organization, and the

1

See Bureau of Consular Affairs, U.S. Dep’t of State, Important Announcement:
Executive Order on Visas (State Visa Guidance), https://travel.state.gov/content/
travel/en/news/important-announcement.html; Bureau of Population, Refugees,
and Migration, U.S. Dep’t of State, Fact Sheet: Information Regarding the U.S.
Refugee Admission Program (State Refugee Fact Sheet), https://www.state.gov/
j/prm/releases/factsheets/2017/272316.htm; Dep’t of Homeland Sec., Frequently
Asked Questions on Protecting the Nation from Foreign Terrorist Entry into the
United States (DHS FAQs), https://www.dhs.gov/news/2017/06/29/frequentlyasked-questions-protecting-nation-foreign-terrorist-entry-united-states.
13

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 21 of 53

Department of State, to provide certain services and assistance to the refugee
following the refugee’s arrival in the United States. See E.R. 117 (Bartlett Decl.
¶¶ 14-17). In order to facilitate successful resettlement, the Department of State
obtains an assurance for every refugee who is permitted to travel to this country
before the refugee’s arrival. See E.R. 117 (Bartlett Decl. ¶ 16). The resettlement
agency, however, typically has no contact with the refugee until he or she arrives
in the United States. See E.R. 119 (Bartlett Decl. ¶ 21). In the government’s view,
an assurance does not, by itself, establish a qualifying bona fide relationship
between the refugee and a U.S. entity. See State Refugee Fact Sheet.
Second, plaintiffs argued that the government construed too narrowly the
phrase “close familial relationship” in the Supreme Court’s stay ruling. Relying on
the Supreme Court’s ruling and on provisions of the Order and the INA, the
government interpreted that phrase to include a parent (including parent-in-law),
spouse, fiancé(e), child, adult son or daughter, son-in-law, daughter-in-law, sibling
(whether whole or half), and step relationships. See State Visa Guidance; DHS
FAQs, Q29. The government’s definition did not include other “extended” family
members, such as siblings-in-law, cousins, nieces, nephews, aunts, uncles,
grandparents, and grandchildren. Respondents argued that these excluded
categories also constitute “close familial relationship[s]” and that such relatives
should be categorically exempt from Sections 2(c), 6(a), and 6(b).

14

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 22 of 53

The district court denied the motion, ruling that “[b]ecause Plaintiffs seek
clarification of the June 26, 2017 injunction modifications authored by the
Supreme Court, clarification should be sought there, not here.” E.R. 205. The
district court declined to “upset the Supreme Court’s careful balancing and
‘equitable judgment,’” or “to substitute its own understanding of the stay for that
of the originating Court[].” E.R. 205.
Plaintiffs appealed, and this Court sua sponte dismissed the appeal for lack
of jurisdiction, holding that it was neither a final order nor immediately appealable
under 28 U.S.C. § 1292(a). Hawaii v. Trump, No. 17-16366, Order, at 2 (9th Cir.
Jul. 7, 2017). The Court noted, however, “that although the district court may not
have authority to clarify an order of the Supreme Court, it does possess the ability
to interpret and enforce the Supreme Court’s order.” Id. at 3.
The same day, plaintiffs filed a new motion in district court presenting
substantially the same arguments as their clarification motion but seeking
enforcement or modification of the district court’s injunction. On July 13, 2017,
the district court granted the motion in substantial part. E.R. 207.
The district court purported to recognize that, because its earlier injunction is
now before the Supreme Court, its authority to issue further orders with respect to

15

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 23 of 53

the injunction (as partially stayed by the Supreme Court) is limited to “preserv[ing]
the status quo or ensur[ing] compliance with its earlier orders.” E.R. 215.2
The district court modified the injunction to bar the government from
applying Sections 6(a) and 6(b) of the Order to any refugee for whom a
resettlement agency in the United States has provided an assurance to the
Department of State. E.R. 222. The district court reasoned that an assurance from
a refugee resettlement agency to the Department of State is “formal,” “a
documented contract,” “binding,” and “issued in the ordinary course,” concluding
that “[b]ona fide does not get any more bona fide than that.” E.R. 223. The
district court deemed it irrelevant that “the assurance is an agreement between the
State Department and a resettlement agency, not an agreement between the
resettlement agency and the refugee.” E.R. 223. The district court also deemed it
irrelevant that, because the Department of State must receive an assurance “before
any refugee is admitted to the United States under the USRAP,” its modified
injunction would apply to any refugee who had been approved by the Department
of Homeland Security and given a satisfactory medical evaluation, thereby
dramatically expanding the scope of injunctive relief. E.R. 222.

2

The district court also noted its authority to modify an earlier injunction if
“informed of new facts that require supervisory action.” E.R. 215 (citation
omitted).
16

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 24 of 53

The court also modified the injunction to compel the government to include
grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces,
nephews, and cousins within the category of individuals with sufficiently close
familial relationships with persons in the United States so as to be exempt from the
Order. E.R. 221, 232. The district court reasoned that the Supreme Court had
included mother-in-law within its definition of “close familial relationship,” which
it apparently viewed as at least as close at the relationships raised by plaintiffs.
E.R. 217, 219-20. The district court also relied on a hodgepodge of federal
immigration provisions and regulations addressing family relations in other
contexts, as well as cases involving local housing ordinances and grandparents
petitioning for visitation rights under state law. E.R. 219. The district court
rejected the government’s argument that a more appropriate source for defining
close family members, for purposes of determining which U.S. citizens have a
sufficiently strong interest in reunification to support interim injunctive relief, is
the provisions of the INA governing which family members have a sufficient
interest in unification to petition for an alien to receive an immigrant visa to come

17

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 25 of 53

to the United States. E.R. 218-19.3 The district court denied a stay pending
appeal. E.R. 230.
Defendants filed a notice of appeal from the district court’s July 13 order the
following day, see E.R. 233, along with a motion for a stay pending appeal.
On July 14, 2017, defendants filed a motion requesting the Supreme Court to
clarify its stay ruling concerning the issues presented in this appeal, along with an
application for a temporary administrative stay of the district court’s modified
injunction. On July 19, 2017, the Supreme Court denied the motion in a summary
order, but stayed the district court’s modified injunction pending resolution of the
government’s appeal to this Court “with respect to refugees covered by a formal
assurance.” Trump v. Hawaii, No. 16-1540 (16A1191), Order (S. Ct. July 19,
2017). Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the
district court’s modified injunction in its entirety.
SUMMARY OF ARGUMENT
I. The district court erred in holding that, under the Supreme Court’s stay
decision, a “bona fide relationship” to a U.S. entity exists for every refugee as to

3

The district court also enjoined the government from denying refugee status to
applicants under the “Lautenberg Program,” which “permits certain nationals of
the former Soviet Union and other countries with ‘close family in the United
States’ to apply for refugee status,” and includes grandparents and grandchildren in
the class of relevant family members. E.R. 228-29.
18

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 26 of 53

whom the Department of State has obtained an assurance from a U.S.-based
resettlement agency. The assurance is provided pursuant to the resettlement
organization’s agreement with the Department of State, i.e., a relationship between
the organization and the government, not the refugee. The organization typically
has no contact with the refugee himself prior to his arrival in the United States.
This indirect connection is not comparable to the direct relationships identified by
the Supreme Court in its stay ruling. Nor is it independent of the refugee
admission process itself. Were an assurance sufficient to give an alien a qualifying
“bona fide relationship” with the resettlement organization, the Supreme Court’s
stay of the district court’s injunction of Sections 6(a) and 6(b) would be essentially
nullified. The district court’s interpretation of the stay ruling is untenable.
II. The district court also erred in holding that, under the Supreme Court’s
stay decision, a “close familial relationship” with a U.S. individual includes any
sibling-in-law, cousin, aunt, uncle, niece, nephew, grandparent, or grandchild. The
Supreme Court limited the injunction to individuals with “close familial
relationship[s],” yet the district court included all but the most distant relatives.
Furthermore, the Court’s stay ruling, in adopting this limitation, cited approvingly
to, and echoes the terms of, the waiver provisions of the Order, the relevant part of
which refers to parents, children, and siblings. That waiver provision was itself
derived from the provisions of the INA that provide the best guidance as to which

19

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 27 of 53

family relationships are sufficient to give a U.S. person a heightened interest in
family unification: the provisions governing which family members can petition
for an alien abroad to receive an immigrant visa to come to the United States. And
that interpretation is consistent with the facts before the Supreme Court, to which
the Supreme Court referred in describing the scope of the stay. Those sources,
rather than strained analogies to cases involving local housing ordinances and
grandparents petitioning for visitation rights under state law, provide the best
guidepost to defining what relationships are sufficiently close to give the U.S.
person a protected equitable interest in reuniting with that alien under the Supreme
Court’s stay ruling.
STANDARD OF REVIEW
A plaintiff seeking a preliminary injunction must show that “he is likely to
succeed on the merits,” that “he is likely to suffer irreparable harm,” and that “the
balance of equities” and “public interest” favor an injunction. Shell Offshore, Inc.
v. Greenpeace, Inc., 709 F.3d 1281, 1289 (9th Cir. 2013). This Court generally
reviews the grant of a preliminary injunction for “abuse of discretion,” but it
reviews the district court’s “interpretation of the underlying legal principles” de
novo. Id. 859

20

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 28 of 53

ARGUMENT
As the district court purported to recognize in issuing its modified injunction,
E.R. 215-16, “[a] district court lacks jurisdiction to modify an injunction once it has
been appealed except to maintain the status quo among the parties.” Prudential Real
Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000); see
also, e.g., Natural Resources Defense Council Inc. v. Southwest Marine, Inc., 242
F.3d 1163, 1166 (9th Cir. 2001) (noting that this rule does not permit a district court
“to materially alter the status of the case on appeal”). But the district court concluded
that modification of its injunction was necessary “to preserve status quo pending
appeal.” E.R. 208. The conclusion was erroneous: the Supreme Court itself
established the status quo pending appeal in its stay ruling, and the district court
disturbed that status quo by significantly expanding the preliminary injunction
beyond the limits of the stay.
I.

THE DISTRICT COURT ERRED IN HOLDING THAT A “BONA
FIDE RELATIONSHIP” TO A U.S. ENTITY EXISTS FOR EVERY
REFUGEE FOR WHOM A RESETTLEMENT AGENCY HAS
PROVIDED AN ASSURANCE
In its stay ruling, the Supreme Court ordered that Section 6(a)’s refugee

suspension and Section 6(b)’s refugee cap “may take effect” as to “all” refugee
applicants except those “who can credibly claim a bona fide relationship with a
person or entity in the United States.” IRAP, 137 S. Ct. at 2089. The district court
concluded, however, that every refugee applicant for whom the federal government
21

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 29 of 53

has entered an assurance agreement with a refugee-resettlement agency
automatically has a qualifying bona fide relationship with a U.S. entity, and is
therefore exempt from Sections 6(a) and 6(b). That construction is clearly
erroneous and would eviscerate the Supreme Court’s stay ruling, as confirmed by
the fact that the Court has already stayed it as well. Accordingly, this Court should
vacate that portion of the district court’s modified preliminary injunction.
1. As part of its implementation of the Refugee Program, the Department of
State enters into annual cooperative agreements with non-profit resettlement
agencies in the United States. See E.R. 117 (Bartlett Decl. ¶¶14-15). Currently,
nine agencies have entered into agreements with the United States to provide
resettlement services. E.R. 117 (Bartlett Decl. ¶14). As the district court observed,
“before any refugee is admitted to the United States under the [Refugee Program],
the Department of State must first receive” an assurance agreement from a
resettlement agency in the United States. E.R. 222; see E.R. 117 (Bartlett Decl.
¶ 16); E.R. 175.
As part of its assurance, the resettlement agency agrees that, once the
refugee arrives in the United States, the resettlement agency (or a local affiliate)
will provide certain benefits for that refugee in exchange for payment from the
government. See E.R. 118 (Bartlett Decl. ¶ 20). The cooperative agreement
specifies the services that the resettlement agency must provide to each refugee

22

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 30 of 53

and provides government-funded compensation to the resettlement agency for
doing so. See E.R. 117 (Bartlett Decl. ¶ 15); E.R. 136. The services provided by
resettlement agencies and their local affiliates throughout the country include
placement, planning, reception, and basic needs and core service activities for
arriving refugees. See E.R. 118 (Bartlett Decl. ¶ 20). Once a given refugee has
been approved by DHS and passes all required medical examinations, he is
assigned to a resettlement agency, which submits the assurance agreeing to provide
the required services after the refugee arrives in the United States. See E.R. 117
(Bartlett Decl. ¶¶ 13-15); E.R. 175.
A government-arranged assurance agreement does not by itself establish a
qualifying “bona fide relationship” between the refugee and “a[n] * * * entity in
the United States” of the type described in the Supreme Court’s stay decision.
IRAP, 137 S. Ct. at 2088. The assurance is not an agreement between the
resettlement agency and the refugee; rather, it is an agreement between that agency
and the federal government. In other words, the government enters into an
agreement to provide the refugee with certain services once the refugee arrives, in
order to ensure a smooth transition into the United States. Significantly, however,
resettlement agencies typically do not have any direct contact with the refugees
they assure before their arrival in the United States. See E.R. 119 (Bartlett Decl.
¶ 21). Rather, the resettlement agency works with individuals and organizations in

23

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 31 of 53

the United States, including any U.S. ties a refugee may otherwise have in the
United States, to prepare for the refugee’s arrival without directly interacting with
the refugee abroad. See E.R. 119 (Bartlett Decl. ¶ 21).
The indirect link between a resettlement agency and refugee that exists by
virtue of such an assurance stands in stark contrast to the sort of relationships
identified by the Supreme Court in its stay ruling. Unlike students who have been
admitted to study at an American university, workers who have accepted jobs at an
American company, and lecturers who come to speak to an American audience, cf.
IRAP, 137 S. Ct. at 2088, refugees do not have any freestanding connection to
resettlement agencies that is separate and apart from the Refugee Program itself
solely by virtue of the agencies’ sponsorship assurance with the government. Nor
can the exclusion of an assured refugee plausibly be thought to “burden” a
resettlement agency, id. at 2087, apart from an opportunity to perform the
resettlement services for which the government has contracted if a refugee is
ultimately admitted.
The district court nevertheless held that an assurance agreement standing
alone establishes a qualifying bona fide relationship between the refugee and the
resettlement agency because it is “formal,” “binding,” refugee-specific, and
“issued in the ordinary course.” E.R. 222-23. But the district court’s focus on
those features misses the fundamental point that an assurance agreement does not

24

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 32 of 53

create any relationship between the resettlement agency and the refugee—much
less one that is independent of the refugee-admission process itself. The common
characteristic of the hypothetical worker, the student admitted to a U.S. educational
institution, and a lecturer hired by a U.S. entity to speak to an American audience
described by the Supreme Court is that each has an independent relationship with a
U.S. entity, such that, in the Court’s view, the entity would suffer concrete
hardship from the alien’s inability to enter the United States. See IRAP, 137 S. Ct.
at 2088. The same cannot be said of refugees merely because a resettlement
agency has agreed to provide services under a contract with the United States
government after the refugee arrives in this country.
Plaintiffs argued before the Supreme Court that, due to Sections 6(a) and
6(b) of the Order, the resettlement agency will lose the opportunity to provide the
services it would render to a refugee after the refugee’s arrival. But those services
would be provided pursuant to a contract with, and paid for largely by, the
government. Again, that does not establish any existing relationship with the
refugee, much less one independent of the refugee-admission process. Indeed, as
an entity that performs those services on behalf of the government in carrying out a
governmental program, a resettlement agency has no cognizable stake in that
program’s application to the persons whom the program exists to benefit. See
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883 (1990); accord Air Courier

25

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 33 of 53

Conference of Am. v. American Postal Workers Union, AFL-CIO, 498 U.S. 517,
524-25 (1991). Plaintiffs’ argument that the services such agencies plan to provide
are sufficient to require entry of an alien lacks any limiting principle, and would
appear to encompass any number of service providers who purportedly plan to
provide services to an alien upon arrival.
Plaintiffs also asserted in district court that resettlement agencies are harmed
because they have devoted private resources to refugee work and may lose federal
funding. Even assuming this to be true, any such harm flows not from any
independent, pre-existing relationship with the refugee formed in the ordinary
course. It exists solely as a result of the resettlement agencies’ contracts with the
government. The district court stated that the Supreme Court’s stay ruling does not
“require[] a refugee to enter into a contract with a United States entity” to have a
qualifying relationship. E.R. 223. But the refugee himself must have some
independent relationship with a U.S. entity. Otherwise, the test the Supreme Court
articulated would be meaningless.
2. As the government has shown, and neither plaintiffs nor the district court
disputed, approximately 24,000 refugees already have been assured—which is
more than the number of refugees who would likely be scheduled to enter during

26

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 34 of 53

the period Sections 6(a) and (b) are in effect.4 The district court’s reading of the
stay thus would mean that all of those refugees have qualifying bona fide
relationships, and all of them would therefore be exempt from the Order.
The district court’s ruling, in short, would mean that the stay crafted by the
Supreme Court after carefully balancing the equities covers virtually no refugee.
Sections 6(a) and 6(b) thus would be unable to “take effect” as the Supreme Court
explicitly intended. IRAP, 137 S. Ct. at 2089. The Supreme Court’s stay ruling
should not be construed in this way, which would, practically speaking, render its
application to Sections 6(a) and 6(b) inoperative. Cf. Corley v. United States, 556
U.S. 303, 314 (2009) (“basic interpretive” principles require that “[a] statute
should be construed [to give effect] to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant” (citation omitted)).
Plaintiffs asserted in district court that there are approximately 175,000
potential refugees who do not yet have assurances. But that is irrelevant to the
intended scope of the Supreme Court’s ruling, because those refugees were already
unlikely to enter while the Order is in effect. Section 6(a) applies only for 120

4

See E.R. 117 (Bartlett Decl. ¶17) (“As of June 30, 2017, a total of 23,958
refugees in the [Refugee Program] were assured by a resettlement agency. It is
unlikely that all the refugees who are already assured would travel to the United
States during the next 120 days while [the Order’s] refugee suspension is partially
in effect.”).
27

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 35 of 53

days from the Supreme Court’s June 26 ruling, see pp. ___, supra, and thus will
expire on October 24, 2017. And Section 6(b) applies only during Fiscal Year
2017, which ends on September 30, 2017. Refugees who would not enter during
those periods are not affected by those provisions of the Order or, consequently, by
the Supreme Court’s stay.
Moreover, plaintiffs’ argument highlights the arbitrariness of the distinction
they seek to draw based on assurances. It makes no sense to exempt from Sections
6(a) and 6(b) of the Order the roughly 24,000 refugees for whom assurances exist,
based on the happenstance that they had reached a later stage of the administrative
process in which the government routinely obtained an assurance. In both cases,
the refugees’ relationship to a U.S. entity is the same: they have none.
Plaintiffs also argued in district court that it was irrelevant that modifying
the injunction to apply to any refugee on whose behalf an assurance had been
provided would eviscerate the Supreme Court’s stay ruling as to the refugee
provisions, because “a stay is not a statute for which a court is obligated to ensure
that each word has a substantial real-world effect.” D. Ct. Doc. 303, at 12.
Notably, plaintiffs did not repeat this argument in the Supreme Court, in opposing
the government’s motion for clarification and/or a stay. And for good reason—the
Supreme Court surely did not mean for this portion of its stay ruling to be a dead
letter. See, e.g., In re Tronox Inc., 855 F.3d 84, 107 (2d Cir. 2017) (courts

28

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 36 of 53

“construe terms of an injunction according to the general interpretive principles of
contract law”); see also 11 Richard A. Lord, Williston on Contracts § 32.11 (4th
ed. 2012) (“all parts of a contract will be given effect when possible”). In fact, the
Supreme Court has since stayed this portion of the district court’s modified
injunction.
There is no basis for this unjustified extension of the district court’s
injunction, which the district court lacked jurisdiction to enter. The district court
thus erred in modifying its injunction to exempt from Sections 6(a) and 6(b) those
refugees for whom an assurance had been provided, given the lack of a bona fide
relationship between those refugees and the resettlement organization that provided
the assurance.
II.

THE DISTRICT COURT ERRED IN HOLDING THAT, UNDER THE
SUPREME COURT’S STAY DECISION, A “CLOSE FAMILIAL
RELATIONSHIP” WITH A U.S. INDIVIDUAL INCLUDES ANY
SIBLING-IN-LAW, COUSIN, AUNT, UNCLE, NIECE, NEPHEW,
GRANDPARENT, OR GRANDCHILD.
For aliens invoking a connection to a U.S. person, the Supreme Court was

clear that only “close familial relationship[s]” count, IRAP, 137 S. Ct. at 2088
(emphasis added), requiring a line to be drawn between such relationships and
more attenuated family connections. The government appropriately construed the
stay to include certain immediate relationships—parent (including parent-in-law),
spouse, fiancé(e), child, adult son or daughter, son-in-law, daughter-in-law, sibling

29

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 37 of 53

(whether whole or half), and step relationships—but to exclude other, more distant
relatives. State Visa Guidance; State Refugee Fact Sheet; DHS FAQs Q29.
The government’s tailored understanding of what family members have
“close familial relationship[s]” comports with the language and reasoning of the
Supreme Court’s June 26 stay order, the most relevant provisions of the INA, and
the facts before the Supreme Court. By contrast, the district court disregarded
those interpretive guideposts and adopted a standard—covering siblings-in-law,
cousins, nieces, nephews, aunts, uncles, grandparents, and grandchildren—that
covers all but the most distant familial connections. Although the Supreme Court
declined to stay that aspect of the district court’s injunction pending appeal, that
interim ruling could have been based on stay factors besides the government’s
likelihood of success on the merits, and thus it does not resolve the merits of the
government’s appeal of the modified injunction. This Court should reverse the
district court’s erroneous ruling and vacate that portion of the injunction.
1. When the Supreme Court balanced the equities and identified
circumstances in which a foreign national’s connection to the United States is
insufficient to outweigh the government’s national security interests, it pointed
specifically to the Order itself, which “distinguishes between foreign nationals who
have some connection to this country, and foreign nationals who do not, by

30

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 38 of 53

establishing a case-by-case waiver system primarily for the benefit of individuals
in the former category.” IRAP, 137 S. Ct. at 2088.
The relevant waiver provision cited by the Court applies to a foreign
national who “seeks to enter the United States to visit or reside with a close family
member (e.g., a spouse, child, or parent) who is a United States citizen, lawful
permanent resident, or alien lawfully admitted on a valid nonimmigrant visa,”
where “the denial of entry during the suspension period would cause undue
hardship.” Order § 3(c)(iv), 82 Fed. Reg. at 13,214 (emphases added); see IRAP,
137 S. Ct. at 2088. The Court’s reference to “close familial relationship,” which
echoes the waiver provision for “close family member,” as well as the specific
reference to that provision in explaining the types of connections that are
sufficient, indicate that the Court envisioned exempting a similarly limited set of
family members from the Order. The district court disregarded the Order’s waiver
provision and the Supreme Court’s express reference to it.
2. Moreover, the specific lines the government had drawn in implementing
the Supreme Court’s partial stay of the district court’s initial injunction—like the
definition of “close family member” in Section 3(c)(iv) of the Order—were
derived from the INA. The INA reflects congressional policies that accord special
status to certain family relationships over others. See Scialabba v. Cuellar de
Osorio, 134 S. Ct. 2191, 2197-98 (2014) (opinion of Kagan, J.). Because “a

31

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 39 of 53

fundamental principle of equity jurisprudence is that ‘equity follows the law,’” In
re Shoreline Concrete Co., 831 F.2d 903, 905 (9th Cir. 1987) (quoting Hedges v.
Dixon County, 150 U.S. 182, 192 (1893)), federal immigration law is an
appropriate point of reference.
Section 201 of the INA defines “immediate relatives”—the “most favored”
family-based immigrant visa category, Cuellar de Osorio, 134 S. Ct. at 2197
(opinion of Kagan, J.)—as “the children, spouses, and parents” of U.S. citizens. 8
U.S.C. § 1151(b)(2)(A)(i). Step-relationships are included in the INA’s definitions
of “child” and “parent.” See 8 U.S.C. § 1101(b)(1)-(2). Section 203, concerning
family-based preferences in allotting numerically-limited visas, specially privileges
the following relationships: unmarried and married sons and daughters (age 21 or
older) of U.S. citizens; siblings of U.S. citizens; and spouses, unmarried children
under the age of 21, and unmarried sons and daughters (age 21 or older) of lawful
permanent residents. See 8 U.S.C. § 1153(a). Half-siblings are included in the
sibling preference. See 9 U.S. Dep’t of State, Foreign Affairs Manual 102.8-3
(2016). The fiancé(e) relationship also is recognized and given special
accommodation in the INA. See 8 U.S.C. §§ 1101(a)(15)(K), 1184(d). The
government’s definition treats these relationships as “close familial relationships”
within the meaning of the Supreme Court’s ruling.

32

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 40 of 53

Contrary to the district court’s characterization, the government’s reliance
on the family-based visa provision of the INA is hardly “cherry-picking.” E.R.
218. The government’s definition of close family members is drawn from the INA
provisions identifying those persons with a sufficient interest in unification to
petition for an alien to come to the United States. While such a petition does not
create legal rights or an entitlement for the alien to enter the United States—the
alien must independently satisfy the eligibility criteria for a visa and for entry—
Congress’s judgment is the most obvious touchstone for the class of close family
members for whom the denial of a visa could even plausibly be thought to affect
the rights of “people * * * in the United States who have relationships with foreign
nationals abroad.” IRAP, 137 S. Ct. at 2087; see id. at 2087-88 (explaining that,
under Kleindienst v. Mandel, 408 U.S. 753, 763-65 (1972), U.S. plaintiffs may
challenge the exclusion of a foreign national that assertedly affects their own First
Amendment interests).
In contrast, the district court relied on a strained analogy to cases involving
local housing ordinances and grandparents petitioning for visitation rights under
state law. E.R. 220 (citing Moore v. City of East Cleveland, 431 U.S. 494, 503-04
(1977), and Troxel v. Granville, 530 U.S. 57, 63-65 (2000) (plurality opinion)).
Those cases hardly support the proposition that such distant family members have
a cognizable stake in whether their alien relatives abroad can enter the country or a

33

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 41 of 53

cognizable harm under the Supreme Court’s stay if the alien is denied entry. In
this very different context, the appropriate definition of “close family members” is
the relationship that permits an individual in the United States to petition for an
immigrant visa on the alien’s behalf. See Cuellar de Osorio, 134 S. Ct. at 2213
(opinion of Kagan, J.) (noting that “the grandchildren, nieces, or nephews of
citizens [are] relationships [that] d[o] not independently entitle [those family
members] to visas”).
Other provisions of the INA confirm this conclusion. For example,
numerous provisions of the INA link the ability to enter or remain in the United
States on hardship to a qualifying family member absent the relief, or other similar
connection to a qualifying family member, and typically limit their terms to close
family members, without including extended relatives such as nieces, nephews,
aunts, uncles, grandparents, or grandchildren. See, e.g., 8 U.S.C.
§ 1182(a)(3)(D)(iv) (discretionary waiver of inadmissibility ground, entitled
“Exception for Close Family Members,” for membership in a totalitarian party for
an immigrant who is a parent, spouse, child, or sibling of a U.S. citizen or a spouse
or child of a lawful permanent resident); 8 U.S.C. § 1182(a)(6)(E)(ii) (exception to
ground of inadmissibility for alien smuggling in the case of certain immigrants
who smuggled their spouse, parent, or child); 8 U.S.C. § 1182(a)(9)(B)(v) (waiver
of unlawful presence ground of inadmissibility for immigrants if refusal of

34

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 42 of 53

admission would result in extreme hardship to U.S. citizen or lawful permanent
resident spouse or parent); 8 U.S.C. §1182(d)(12) (waiver for civil document fraud
ground of inadmissibility for offense committed solely to assist, aid, or support
spouse or child); 8 U.S.C. § 1182(g)(1) (waiver of public health ground of
inadmissibility for spouse, unmarried son or daughter, or minor lawfully adopted
unmarried child of U.S. citizen or lawful permanent resident); 8 U.S.C.
§ 1182(h)(1)(B) (waiver of certain criminal grounds of inadmissibility for spouse,
parent, or child of U.S. citizen or lawful permanent resident if denial of admission
would result in extreme hardship to the alien’s U.S. spouse, parent, or child); 8
U.S.C. § 1182(i) (waiver of fraud/misrepresentation ground of inadmissibility for
spouse, parent, or child of U.S. citizen or lawful permanent resident if denial of
admission would result in extreme hardship to the alien’s U.S. spouse, parent, or
child).
Similar priority status is accorded by regulation to close family members of
certain refugees, but not to family members in the more attenuated categories
included in the district court’s modified injunction. Under 8 C.F.R. § 207.7, a
principal refugee admitted to the United States may request following-to-join
benefits for a spouse and unmarried child under the age of 21, but not for more
distant family members. A law concerning Iraqi refugees employed the phrase
“close family members” and stated that the phrase’s meaning is “described in

35

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 43 of 53

section 201(b)(2)(A)(i) or 203(a) of the Immigration and Nationality Act (8
U.S.C. 1151(b)(2)(A)(i) and 1153(a))”5—the same provisions upon which the
government principally relies here. The INA does not provide comparable
immigration benefits for siblings-in-law, cousins, nieces, nephews, aunts, uncles,
grandparents, or grandchildren of persons in the United States.
To the extent the district court addressed the INA at all, it relied on statutory
provisions or implementing regulations that are not relevant to visa issuance or that
otherwise reflect narrow exceptions to the general rules. For example, the court
relied on the fact that, by regulation, a juvenile alien who cannot be released to the
custody of his or her parents may be released to an aunt, uncle, or grandparent.
E.R. 219 (citing Reno v. Flores, 507 U.S. 292, 297, 310 (1993), and 8 C.F.R.
§ 236.3(b)(1)(iii)). But that regulation sheds no light on the most relevant inquiry
for purposes of implementing the injunction, i.e., what family relationship is
sufficient to permit an individual to petition for a visa for aliens abroad.
The district court also relied on a section of the Family Sponsor Immigration
Act of 2002, Pub. L. No. 107-150, 116 Stat. 74, which refers to an alien’s sister-inlaw, brother-in-law, grandparents, and grandchildren as “close family.” E.R. 219
(citing § 2(a), 116 Stat. 74). The codified statutory provision (which does not use

5

National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 1243(a)(4), 122 Stat. 396 (codified as amended at 8 U.S.C. § 1157 note).
36

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 44 of 53

the phrase “close family”) does not create the ability to petition for a visa; it only
establishes who may serve as a financial sponsor for certain aliens. See 8 U.S.C.
§ 1183a. Even in that context, the provision reflects the same distinction between
close and extended family drawn by the government. Under 8 U.S.C.
§ 1183a(f)(1)(D) and (4), a family sponsor must be the same relative who is
petitioning under 8 U.S.C. § 1154 to classify the alien as a family-sponsored or
employment-based immigrant (or a relative with a significant ownership interest in
the entity filing an employment-based petition). See 8 U.S.C. § 1153(a) and (b).
Only spouses, parents, children, and siblings may file family-sponsored petitions,
and the eligible “relatives” in the employment-based context are limited to the
same family members. See 8 U.S.C. § 1154(a); 8 C.F.R. § 213a.1 (defining
relative to include spouse, parents, children, and siblings); see also 71 Fed. Reg.
35,732, 35,733 (June 21, 2006) (defining “‘relative,’ for purposes of the affidavit
of support requirement, to include only those family members who can file alien
relative visa petitions”). Only when a petitioner has died and the petition either
converts to a widow(er) petition or the Secretary of Homeland Security reinstates
the petition on humanitarian grounds can one of the extended family members
serve as a financial sponsor under this provision. See 8 U.S.C. § 1183a(f)(5)(B)(i)
and (ii). And even then, siblings-in-law and grandparents only serve as financial
sponsors; they cannot petition for a visa applicant. Cf. Cuellar de Osorio, 134 S.

37

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 45 of 53

Ct. at 2213 (opinion of Kagan, J.) (“grandchildren, nieces, or nephews of citizens
[are] relationships [that] d[o] not independently entitle [those family members] to
visas”).
The other regulations and statutory provisions relied on by the district court
(E.R. 219 & n.8)) are even further afield. The court cited a regulation that allows
grandchildren, nieces, and nephews to be eligible for T visas (for victims of human
trafficking), but only if they face “a present danger of retaliation as a result of the
principal’s escape from the severe form of trafficking or cooperation with law
enforcement.” 81 Fed. Reg. 92,266, 92,280 (Dec. 19, 2016). The court also relied
on DHS regulations that allow an individual to “apply for asylum if a ‘grandparent,
grandchild, aunt, uncle, niece, or nephew’ resides in the United States” 69 Fed.
Reg. 69,480, 69,488 (Nov. 29, 2004), but those provisions were required by an
agreement with Canada that includes broader familial definitions than are typically
available under the INA. See id. at 69,480 (discussing “Safe Third Country
Agreement”). And the remaining INA provisions relied on by the district court
apply only where the usual close family member has died. See 8 U.S.C. § 1433(a);
Pub. L. No. 107-56, § 421(b)(3), 115 Stat. 272. Those narrow exceptions are not a
basis for disregarding the INA’s typical definition of close familial relationships.
Notably, moreover, in cases in which an alien abroad has a particularly close
relationship with a more distant relative, the alien would be a potential candidate

38

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 46 of 53

for a case-by-case waiver under Section 3(c) of the Order, which provides a nonexclusive list of relationships that might qualify an individual for a waiver. There
is no reason, however, to assume categorically that every brother-in-law, cousin, or
nephew, for example, has the requisite close ties to make them a “close familial
relationship.”
3. Finally, the government’s definition of a close familial relationship is
consistent with the factual context of the Supreme Court’s stay order. Although
the Supreme Court did not catalogue exhaustively which “close familial
relationships” are sufficient to exempt an alien from the Order, the partial stay left
the injunction in place only for persons “similarly situated” to John Doe #1 and Dr.
Elshikh. IRAP, 137 S. Ct. at 2088. The Supreme Court also explained that “[t]he
facts of these cases illustrate the sort of relationship that qualifies,” citing Doe #1’s
wife and Dr. Elshikh’s mother-in-law (who is the mother of Elshikh’s U.S.-citizen
wife). Id. Those types of immediate relationships reflect the reason why the Court
determined that certain ties to family members in the United States weigh in favor
of leaving the injunction in effect as to such persons: the U.S. relative “can
legitimately claim concrete hardship if that person is excluded.” Id. at 2089. The
same is true of other original plaintiffs in these cases before the Supreme Court,
who sought entry of fiancé(e)s and siblings. 16-1436 Pet. 15 n.7.

39

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 47 of 53

The district court erroneously read the Supreme Court’s reference to Dr.
Elshikh’s mother-in-law as creating a much larger exception, unmoored from the
INA and the Order’s waiver provision. The Supreme Court did not declare that
every “mother-in-law” automatically has a qualifying “close familial relationship”;
rather, it examined “[t]he facts of these cases,” IRAP, 137 S. Ct. at 2088, from
which it was apparent that Dr. Elshikh’s mother-in-law would have a qualifying
relationship as the mother of Dr. Elshikh’s wife, herself a U.S. citizen. See E.R.
42-43 (Elshikh Decl. ¶¶ 1, 4). And the Supreme Court described Dr. Elshikh’s
mother-in-law as a “foreign national who wishes to enter the United States to live
with or visit a family member,” IRAP, 137 S. Ct. at 2088, which she of course
would do by living with or visiting her U.S. citizen daughter. The Court’s
statement that Dr. Elshikh’s mother-in-law has a “close familial relationship” thus
did not necessarily reflect a categorical determination to privilege the mother-inlaw relationship as such, even though Congress in the INA did not. Out of an
abundance of caution, however, the government has implemented the Order in its
guidance to include parents-in-law (and the reciprocal relationship, children-inlaw) as having qualifying bona fide relationships. See p. 14, supra.
Importantly, as with Dr. Elshikh’s mother-in-law, parents-in-law of persons
in the United States will typically also be parents of persons in the United States,
because spouses typically live together. This places the parent-in-law relationship

40

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 48 of 53

in a fundamentally different position from the other relatives that the district court
included. For examples, siblings-in-law of persons in the United States are far less
likely to be siblings of persons in the United States, because siblings often live
apart. And the likelihood is even lower for cousins and the other types of more
distant relatives that the district court held are not covered by the Supreme Court’s
stay. The Supreme Court’s holding that Dr. Elshikh’s mother-in-law is exempt
from the Order’s application cannot reasonably be understood to hold that virtually
all family members are exempt from the Order, especially given the Supreme
Court’s clear admonition that “a close familial relationship is required.” IRAP, 137
S. Ct. at 2088 (emphasis added).6
At a minimum, however, if this Court were to conclude that the
government’s definition of “close familial relationship” is too narrow, it should
evaluate the relationships separately rather than on a blanket basis. The district
court invoked “common sense” to conclude, for example, that “grandparents are
the epitome of close family members.” E.R. 221. Even if this Court were to agree,

6

The district court’s injunction compelling the government to exempt from
Sections 6(a) and 6(b) of the Order refugees admitted through the Lautenberg
Program was also predicated on the district court’s analysis of what constitutes a
“close familial relationship.” E.R. 228-29. Should the Court vacate the injunction
insofar as it compels the government to include extended family within the class of
exempt “close familial relationships,” therefore, the injunction must also be
vacated as applied to refugees under the Lautenberg Program.
41

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 49 of 53

that would not support the district court’s extension of the injunction to siblings-inlaw, cousins, aunts, uncles, nieces, and nephews—relationships that are hardly the
“epitome” of a close familial relationship. And, critically, not one of the
immigration law-related sources that the district court pointed to in adopting its
expansive definition of “close familial relationship” applied to cousins. Even if
this Court declines to vacate this portion of the preliminary injunction in its
entirety, it should narrow its scope.
CONCLUSION
Defendants-appellants respectfully suggest that the district court’s modified
injunction should be vacated.

42

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 50 of 53

Respectfully submitted,

/s/ Jeffrey B. Wall
CHAD A. READLER
Acting Assistant Attorney General

JEFFREY B. WALL
Acting Solicitor General

ELLIOT ENOKI
Acting United States Attorney

EDWIN S. KNEEDLER
Deputy Solicitor General

HASHIM M. MOOPPAN
Deputy Assistant Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-2689

JULY 2017

43

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 51 of 53

STATEMENT OF RELATED CASES
There are no related cases within the meaning of Ninth Circuit Rule 28-2.6.
This appeal involves a challenge to Executive Order No. 13,780 (Mar. 6, 2017).
That Executive Order revokes and replaces an earlier Executive Order, No. 13,769
(Jan. 27, 2017), which was challenged in Washington v. Trump, 847 F.3d 1151
(2017) (per curiam).

/s/ Sharon Swingle
Sharon Swingle

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 52 of 53

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-face requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type-volume limitations of
Rule 32(a)(7)(B). The brief contains 9,709 words, excluding the parts of the brief
excluded by Fed. R. App. P. 32(a)(7)(iii).

/s/ Sharon Swingle
Sharon Swingle

 Case: 17-16426, 07/27/2017, ID: 10524184, DktEntry: 8, Page 53 of 53

CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2017, I electronically filed the foregoing brief
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.

Participants in the case are

registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.

/s/ Sharon Swingle
Sharon Swingle