State of Hawaii; Ismail Elshikh v. Donald J. Trump

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S TATE OF HAWAII; ISMAIL E LSHIKH,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP , in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND S ECURITY; J OHN F.
KELLY, in his official capacity as
Secretary of Homeland Security;
U.S. DEPARTMENT OF S TATE; R EX
W. TILLERSON, in his official
capacity as Secretary of State;
UNITED S TATES OF A MERICA,
Defendants-Appellants.
No. 17-16426
D.C. No.
1:17-cv-00050-
DKW-KSC
OPINION
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted August 28, 2017
Seattle, Washington
Filed September 7, 2017
Before: Michael Daly Hawkins, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Per Curiam Opinion

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2 S TATE OF HAWAII V. TRUMP
SUMMARY*
Immigration
The panel affirmed the district court’s modified
preliminary injunction, which enjoins the Government from
enforcing Executive Order 13780, “Protecting the Nation
From Foreign Terrorist Entry Into the United States” (March
6, 2017), against (1) grandparents, grandchildren, brothers-
in-law, sisters-in-law, aunts, uncles, nieces, nephews, and
cousins of persons in the United States; and (2) refugees who
have formal assurances from resettlement agencies or are in
the U.S. Refugee Admissions Program through the
Lautenberg Amendment.
The Executive Order suspends for ninety days the entry
into the United States of more than 180 million nationals of
Iran, Libya, Somalia, Sudan, Syria, and Yemen, suspends for
120 days the entry of refugees and decisions on applications
for refugee status, and cuts by more than half the number of
refugees that may be admitted to the United States in fiscal
year 2017 from 110,000 persons to 50,000.
The Supreme Court recently stayed the preliminary
injunctions entered in this case and a related Fourth Circuit
case to the extent they prevent enforcement of the Executive
Order “with respect to foreign nationals who lack any bona
fide relationship with a person or entity in the United States,”
but left the injunctions in place for individuals who establish
a bona fide “close familial relationship” with a person in the
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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S TATE OF HAWAII V. TRUMP 3
United States, and individuals seeking admission as refugees
who can credibly claim a bona fide relationship with a
person or entity in the United States.
In enforcing the non-enjoined parts of the Executive
Order, the relevant Government agencies published
guidance defining a “close familial relationship” as
restricted to parents, parents-in-law, spouses, fiancés,
children, adult sons and daughters, sons- and daughters-in-
law, siblings (half and whole relationships), and step
relationships.
The district court concluded that the Government too
narrowly defined the term “close familial relationship,” and
modified the preliminary injunction to include additional
family relationships. The district court also concluded that
refugees with formal assurances have bona fide relationships
with refugee resettlement agencies and that refugees in the
U.S. Refugee Admissions Program through the Lautenberg
Amendment are categorically protected by the injunction.
Affirming the district court’s order, the panel concluded
that in modifying the preliminary injunction to preserve the
status quo, the district court carefully and correctly balanced
the hardships and the equitable considerations as directed by
the Supreme Court, and did not abuse its discretion.
With respect to individuals, the panel concluded that the
district court did not err in rejecting the Government’s
restricted reading of “close familial relationship,” noting that
the Supreme Court’s stay order considered whether a foreign
national lacked any bona fide relationship with a person in
the United States. The panel concluded that denying entry
to the family members excluded by the Government’s
narrow reading would burden persons in the United States.

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4 S TATE OF HAWAII V. TRUMP
With respect to refugees, the panel concluded that the
district court did not abuse its discretion in determining that
refugees with formal assurances from resettlement agencies
have bona fide relationships with those agencies and are
covered by the injunction because the assurance is formal,
documented, and formed in the ordinary course rather than
to evade the Executive Order. The panel considered the
individualized screening process necessary to obtain a
formal assurance and the concrete harms faced by a
resettlement agency because of that refugee’s exclusion.
The panel also shortened the time for the mandate to
issue from 52 days to five days from the filing of this
opinion, noting that refugees have a narrow window of time
to complete travel because certain security and medical
checks expire and many refugees without the benefit of the
injunction are gravely imperiled.
COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney
General; Douglas N. Letter, Sharon Swingle, H. Thomas
Byron III, and Lowell V. Sturgill Jr., Appellate Staff; Elliot
Enoki, Acting United States Attorney; Chad A. Readler,
Acting Assistant Attorney General; Edwin S. Kneedler,
Deputy Solicitor General; Jeffrey B. Wall, Acting Solicitor
General; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellants.
Colleen Sinzdak (argued), Elizabeth Hagerty, Mitchell P.
Reich, and Neal Kumar Katyal, Hogal Lovells US LLP,
Washington, D.C.; Thomas P. Schmidt, Hogal Lovells US
LLP, New York, New York; Alexander B. Bowerman and
Sara Solow, Hogan Lovells US LLP, Philadelphia,

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S TATE OF HAWAII V. TRUMP 5
Pennsylvania; Robert T. Nakatsuji, Kimberly T. Guidry,
Donna H. Kalama, and Deirdre Marie-Iha, Deputy Attorneys
General; Clyde J. Wadsworth, Solicitor General; Douglas S.
Chin, Attorney General; Department of the Attorney
General, Honolulu, Hawaii; for Plaintiffs-Appellees.
Michael Price and Faiza Patel, Brennan Center for Justice at
New York University School of Law, New York, New York;
Gadeir I. Abbas and Lena F. Masri, Council on American-
Islamic Relations, Washington, D.C.; Jethro Eisenstein,
Profeta & Eisenstein, New York, New York; for Amici
Curiae Adam Soltani, Asma Elhuni, Hassan Shibly, and
Basim Elkarra.
Tahlia Townsend and Jonathan M. Freiman, Wiggin and
Dana LLP, New Haven, Connecticut; Hope Metcalf and
Harold Hongju Koh, Rule of Law Clinic, Yale Law School,
New Haven, Connecticut; for Amici Curiae Former National
Security Officials.
Mark A. Aronchick and Robert A. Wiygul, Hangley
Aronchick Segal Pudlin & Schiller, Philadelphia,
Pennsylvania, for Amici Curiae Law Professors.
Barbara D. Underwood, Solicitor General; Anisha S.
Dasgupta, Deputy Solicitor General; Zainab A. Chaudhry,
Assistant Solicitor General of Counsel; Eric T.
Schneiderman, Attorney General; Office of the Attorney
General, New York, New York; Xavier Becerra, Attorney
General, Office of the Attorney General, Sacramento,
California; George Jepsen, Attorney General, Office of the
Attorney General, Hartford, Connecticut; Matthew P. Denn,
Attorney General, Delaware Department of Justice,
Wilmington, Delaware; Lisa Madigan, Attorney General,
Office of the Attorney General, Chicago, Illinois; Thomas J.

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6 S TATE OF HAWAII V. TRUMP
Miller, Attorney General, Office of the Attorney General,
Des Moines, Iowa; Janet T. Mills, Attorney General, Office
of the Attorney General, Augusta, Maine; Brian E. Frosh,
Attorney General, Attorney General’s Office, Baltimore,
Maryland; Maura Healey, Attorney General, Attorney
General’s Office, Boston, Massachusetts; Hector Balderas,
Attorney General, Office of the Attorney General, Santa Fe,
New Mexico; Ellen F. Rosenblum, Attorney General, Office
of the Attorney General, Salem, Oregon; Peter F. Kilmartin,
Attorney General, Office of the Attorney General,
Providence, Rhode Island; Thomas J. Donovan Jr., Attorney
General, Office of the Attorney General, Montpelier,
Vermont; Mark R. Herring, Attorney General, Office of the
Attorney General, Richmond, Virginia; Bob Ferguson,
Attorney General, Office of the Attorney General, Seattle,
Washington; Karl A. Racine, Attorney General, Office of the
Attorney General, Washington, D.C.; for Amici Curiae
States of New York, California, Connecticut, Delaware,
Illinois, Iowa, Maine, Maryland, Massachusetts, New
Mexico, Oregon, Rhode Island, Vermont, Virginia, and
Washington, and the District of Columbia.
Omar Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside,
Sarah L. Mehta, Spencer E. Amdur, and David K. Hausman,
American Civil Liberties Union Foundation, New York,
New York; David Cole, Daniel Mach, and Heather L.
Weaver, American Civil Liberties Union Foundation,
Washington, D.C.; Cecillia D. Wang and Cody H. Wofsy,
American Civil Liberties Union, San Francisco, Calfornia;
Karen C. Tumlin, Nicholas Espiritu, Melissa S. Keaney,
Esther Sung, and Marielena Hincapié, National Immigration
Law Center, Los Angeles, California; Justin B. Cox,
National Immigration Law Center, Atlanta, Georgia; Mateo
Caballero, ACLU of Hawai‘i Foundation, Honolulu,
Hawaii; Mariko Hirose, Rebecca Heller, and Mark Wasef,

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S TATE OF HAWAII V. TRUMP 7
International Refugee Assistance Project, New York, New
York; for Amici Curiae International Refugee Assistance
Project and HIAS, Inc.
G. Eric Brunstad, Jr., Dechert LLP, Hartford, Connecticut;
for Amicus Curiae Human Rights First.
Donna M. Doblick, Devin M. Misour, and James C. Martin,
Reed Smith LLP, Pittsburgh, Pennsylvania; Jayne Fleming,
Reed Smith LLP, New York, New York; for Amicus Curiae
U.S. Committee for Refugees and Immigrants.
OPINION
PER CURIAM:
We are asked to review the district court’s modified
preliminary injunction, which enjoins the Government from
enforcing Executive Order 13780 against (1) grandparents,
grandchildren, brothers-in-law, sisters-in-law, aunts, uncles,
nieces, nephews, and cousins of persons in the United States;
and (2) refugees who have formal assurances from
resettlement agencies or are in the U.S. Refugee Admissions
Program (“USRAP”) through the Lautenberg Amendment.
For the reasons that follow, we conclude that in
modifying the preliminary injunction to preserve the status
quo, the district court carefully and correctly balanced the
hardships and the equitable considerations as directed by the
Supreme Court in Trump v. International Refugee
Assistance Project, 137 S. Ct. 2080, 2088 (2017), and did
not abuse its discretion. We affirm.

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8 S TATE OF HAWAII V. TRUMP
I
A
On March 6, 2017, President Trump issued Executive
Order 13780, entitled “Protecting the Nation From Foreign
Terrorist Entry Into the United States.” Exec. Order No.
13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (the “Executive
Order”).1 Section 2(c) of the Executive Order suspends for
ninety days the entry of nationals of Iran, Libya, Somalia,
Sudan, Syria, and Yemen into the United States. Id. at
13213. Section 6(a) suspends for 120 days the entry of
refugees into the United States and decisions on applications
for refugee status, and § 6(b) cuts by more than half the
number of refugees that may be admitted to the United States
in fiscal year 2017 from 110,000 persons to 50,000 persons.
Id. at 13215–16.
B
On March 15, 2017, the District of Hawai‘i temporarily
enjoined § 2 and § 6 of the Executive Order, holding that
Plaintiffs, the State of Hawai‘i and Dr. Elshikh, had shown a
likelihood of success on the merits of their Establishment
Clause claim. Hawai‘i v. Trump, — F. Supp. 3d —, No. CV
17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15,
2017). Plaintiffs had argued that the Executive Order was
1 The President revoked Executive Order 13780’s predecessor,
Executive Order 13769, after a district court entered a nationwide
injunction enjoining its enforcement and this court denied the
Government’s emergency motion to stay the injunction pending appeal.
See Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017),
reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017), amended
and superseded by 858 F.3d 1168 (9th Cir. 2017).

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S TATE OF HAWAII V. TRUMP 9
primarily motivated by anti-Muslim animus and not by its
purported national security objective.
On March 29, 2017, the district court converted the
temporary restraining order into a preliminary injunction,
and entered the following injunction:
Defendants and all their respective officers,
agents, servants, employees, and attorneys,
and persons in active concert or participation
with them, are hereby enjoined from
enforcing or implementing Sections 2 and 6
of the Executive Order across the Nation.
Enforcement of these provisions in all places,
including the United States, at all United
States borders and ports of entry, and in the
issuance of visas is prohibited, pending
further orders from this Court.
Hawai‘i v. Trump, — F. Supp. 3d —, No. CV 17-00050
DKW-KSC, 2017 WL 1167383, at *9 (D. Haw. Mar. 29,
2017), aff’d in part, vacated in part, remanded, 859 F.3d 741
(9th Cir. 2017).
On June 12, 2017, we affirmed in substantial part the
preliminary injunction. See Hawai‘i v. Trump, 859 F.3d 741
(9th Cir. 2017) (per curiam), cert. granted sub nom. Trump
v. Int’l Refugee Assistance Project, 137 S. Ct. 2080. Rather
than reach the constitutional question, we resolved the
appeal on statutory grounds, concluding that the President
exceeded the scope of his delegated authority and that the
Executive Order violated other provisions of the
Immigration and Nationality Act (“INA”). Id. at 755–56.
We also vacated parts of the injunction that enjoined the
Government from conducting internal reviews of its vetting

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10 S TATE OF HAWAII V. TRUMP
procedures and vacated the injunction to the extent it ran
against the President. Id. at 788–89.
We remanded the case to the District of Hawai‘i to enter
an amended preliminary injunction consistent with our
opinion and granted the parties’ motion to expedite the
issuance of the mandate. See id. at 789. On June 19, 2017,
the district court entered the following amended preliminary
injunction:
Defendants JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
REX W. TILLERSON, in his official
capacity as Secretary of State; and all their
respective officers, agents, servants,
employees, and attorneys, and persons in
active concert or participation with them, are
hereby enjoined from enforcing or
implementing Sections 2 and 6 of Executive
Order No. 13780 across the Nation—except
for those portions of Sections 2 and 6
providing for internal review procedures that
do not burden individuals outside of the
executive branch of the federal government.
Enforcement of the enjoined provisions in all
places, including the United States, at all
United States borders and ports of entry, and
in the issuance of visas is prohibited, pending
further orders from this Court.
Hawai‘i v. Trump, No. 1:17-cv-00050-DKW-KSC (D. Haw.
June 19, 2017), ECF No. 291 (footnote omitted).

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S TATE OF HAWAII V. TRUMP 11
C
On March 16, 2017, the District of Maryland entered a
separate preliminary injunction, barring enforcement of
§ 2(c) of the Executive Order, concluding that the plaintiffs
were likely to succeed on the merits of their Establishment
Clause claim. Int’l Refugee Assistance Project v. Trump, —
F. Supp. 3d —, No. CV TDC-17-0361, 2017 WL 1018235,
at *16 (D. Md. Mar. 16, 2017), aff’d in part, vacated in part,
857 F.3d 554 (4th Cir. 2017).
The Fourth Circuit largely affirmed the injunction. Int’l
Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.
2017) (en banc), cert. granted, 137 S. Ct. 2080 (2017). The
majority of the Fourth Circuit’s en banc court held that
plaintiff John Doe #1, a permanent resident who alleged that
the Executive Order prevented his wife from obtaining a
visa, was likely to prevail on the merits of the Establishment
Clause claim. Id. at 578–79, 601.
D
The Government then filed petitions for certiorari and
applications to stay the preliminary injunctions entered in
Hawai‘i and in International Refugee Assistance Project.
On June 26, 2017, the Supreme Court granted the petitions
for certiorari and granted the stay applications in part.
Trump, 137 S. Ct. at 2083.
As to § 2(c) of the Executive Order, the Supreme Court
stayed the preliminary injunctions “to the extent the
injunctions prevent enforcement of § 2(c) with respect to
foreign nationals who lack any bona fide relationship with a
person or entity in the United States.” Id. at 2087. The Court
“balance[d] the equities,” id., and concluded that for foreign
nationals “who have no connection to the United States at

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12 S TATE OF HAWAII V. TRUMP
all[,] . . . [d]enying entry to such a foreign national does not
burden any American party by reason of that party’s
relationship with the foreign national,” id. at 2088. But the
Court left the injunctions in place “with respect to parties
similarly situated to [John Doe #1], Dr. Elshikh, and
Hawaii.” Id. The Court explained: “In practical terms, this
means that § 2(c) may not be enforced against foreign
nationals who have a credible claim of a bona fide
relationship with a person or entity in the United States.” Id.
The Court explained how the relationships held by the
plaintiffs “illustrate the sort of relationship that qualifies”:
For individuals, a close familial relationship
is required. A foreign national who wishes to
enter the United States to live with or visit a
family member, like Doe’s wife or Dr.
Elshikh’s mother-in-law, clearly has such a
relationship. As for entities, the relationship
must be formal, documented, and formed in
the ordinary course, rather than for the
purpose of evading [the Executive Order].
The students from the designated countries
who have been admitted to the University of
Hawaii have such a relationship with an
American entity. So too would a worker who
accepted an offer of employment from an
American company or a lecturer invited to
address an American audience. Not so
someone who enters into a relationship
simply to avoid § 2(c): For example, a
nonprofit group devoted to immigration
issues may not contact foreign nationals from
the designated countries, add them to client

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S TATE OF HAWAII V. TRUMP 13
lists, and then secure their entry by claiming
injury from their exclusion.
Id.
As to § 6(a) and § 6(b) of the Executive Order, the
Supreme Court stated that the “equitable balance struck”
regarding § 2(c) “applies in this context as well.” Id. at 2089.
Thus, the Executive Order may not be enforced against “an
individual seeking admission as a refugee who can credibly
claim a bona fide relationship with a person or entity in the
United States.” Id. The Court explained: “An American
individual or entity that has a bona fide relationship with a
particular person seeking to enter the country as a refugee
can legitimately claim concrete hardship if that person is
excluded. As to these individuals and entities, we do not
disturb the injunction.” Id.
E
On June 29, 2017, the Government began to enforce the
non-enjoined parts of the Executive Order.2 The relevant
agencies published public guidance on the scope of the
implementation and enforcement of the Executive Order.
On June 29, 2017, Plaintiffs filed an emergency motion to
clarify the scope of the preliminary injunction. On July 6,
2017, the district court denied that motion, ruling that
“[b]ecause Plaintiffs seek clarification of the June 26, 2017
injunction modifications authored by the Supreme Court,
2 The President issued a memorandum that changed the effective
date of the Executive Order and directed the relevant agencies to “begin
implementation of each relevant provision of sections 2 and 6 of the
Executive Order 72 hours after all applicable injunctions are lifted or
stayed with respect to that provision.” Effective Date in Executive Order
13780, 82 Fed. Reg. 27965, 27966 (June 14, 2017).

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14 S TATE OF HAWAII V. TRUMP
clarification should be sought there, not here.” Hawai‘i v.
Trump, — F.3d —, No. 17-00050 DKW-KSC, 2017 WL
2882696, at *3 (D. Haw. July 6, 2017), appeal dismissed,
No. 17-16366, 2017 WL 3048456 (9th Cir. July 7, 2017).
Plaintiffs appealed that district court ruling on July 7,
2017, and we sua sponte dismissed the appeal for lack of
jurisdiction that same day. Hawaii v. Trump, — F.3d —,
No. 17-16366, 2017 WL 3048456, at *1 (9th Cir. July 7,
2017). We also noted that the district court “possess[es] the
ability to interpret and enforce the Supreme Court’s order, as
well as the authority to enjoin against, for example, a party’s
violation of the Supreme Court’s order placing effective
limitations on the scope of the district court’s preliminary
injunction.” Id.
On the evening of July 7, 2017, Plaintiffs filed a new
motion in the district court, this time seeking enforcement or
modification, rather than clarification, of the district court’s
preliminary injunction. Plaintiffs contended the following:
(1) the Government’s definition of “close familial
relationship” was artificially narrow; (2) refugees with a
formal assurance from a refugee resettlement agency have a
“bona fide relationship” with a U.S. entity; (3) clients of
legal services organizations have a “bona fide relationship”
with a U.S. entity; and (4) refugees in the Direct Access
Program for U.S.-Affiliated Iraqis, the Central American
Minors Program, and the Lautenberg Program are
categorically protected.
On July 13, 2017, the district court granted in part
Plaintiffs’ motion to enforce or modify the preliminary
injunction. Hawai‘i v. Trump, — F. Supp. 3d —, No. CV
17-00050 DKW-KSC, 2017 WL 2989048, at *1 (D. Haw.
July 13, 2017). The district court concluded that the
Government too narrowly defined “close familial

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S TATE OF HAWAII V. TRUMP 15
relationships” by restricting it to parents, parents-in-law,
spouses, fiancés,3 children, adult sons and daughters, sons-
and daughters-in-law, siblings (half and whole
relationships), and step relationships. Id. at *5–6. The
district court modified the preliminary injunction to include
grandparents, grandchildren, brothers-in-law, sisters-in-law,
aunts, uncles, nieces, nephews, and cousins of persons in the
United States. Id. at *6, *10. The district court also
concluded that refugees with a formal assurance have bona
fide relationships with refugee resettlement agencies and
that refugees in USRAP through the Lautenberg
Amendment should categorically be protected by the
injunction.4 Id. at *7, *9. The district court entered the
amended preliminary injunction as follows:
Defendants JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
REX W. TILLERSON, in his official
capacity as Secretary of State; and all their
respective officers, agents, servants,
employees, and attorneys, and persons in
active concert or participation with them, are
hereby enjoined from enforcing or
implementing Sections 2 and 6 of Executive
Order No. 13,780 across the Nation—except
3 The Government’s initial guidance indicated that fiancés would
not be considered close family members. Subsequent guidance reversed
the Government’s position as to fiancés.
4 The district court did not grant relief with respect to foreign
nationals in a client relationship with a legal services organization or to
participants in the Direct Access Program for U.S.-Affiliated Iraqis and
the Central American Minors Program. See Hawai‘i, 2017 WL 2989048,
at *8–9. Plaintiffs do not challenge these aspects of the district court’s
order.

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16 S TATE OF HAWAII V. TRUMP
for those portions of Sections 2 and 6
providing for internal review procedures that
do not burden individuals outside of the
executive branch of the federal government.
Enforcement of the enjoined provisions in all
places, including the United States, at all
United States borders and ports of entry, and
in the issuance of visas is prohibited, pending
further orders from this Court.
Defendants JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
REX W. TILLERSON, in his official
capacity as Secretary of State; and all their
respective officers, agents, servants,
employees, and attorneys, and persons in
active concert or participation with them are
enjoined fully from the following:
1. Applying section 2(c), 6(a) and 6(b) of
Executive Order 13,780 to exclude
grandparents, grandchildren, brothers-in-
law, sisters-in-law, aunts, uncles, nieces,
nephews, and cousins of persons in the
United States.
2. Applying Section 6(a) and 6(b) of
Executive Order 13,780 to exclude
refugees who: (i) have a formal assurance
from an agency within the United States
that the agency will provide, or ensure the
provision of, reception and placement
services to that refugee; or (ii) are in the

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S TATE OF HAWAII V. TRUMP 17
U.S. Refugee Admissions Program
through the Lautenberg Program.
Id. at *10.
On July 14, 2017, the Government filed a notice of
appeal from the district court’s order, along with a motion
for a stay pending appeal. The Government also filed a
motion at the Supreme Court, requesting that the Court
clarify its June 26, 2017 stay ruling concerning the issues
presented in the appeal, along with an application for a
temporary administrative stay of the district court’s
injunction. On July 19, 2017, the Supreme Court summarily
denied the motion for clarification but stayed in part the
district court’s modified injunction “with respect to refugees
covered by a formal assurance,” pending resolution of the
Government’s appeal before us. Trump v. Hawaii, No. 16-
1540, 2017 WL 3045234, at *1 (U.S. July 19, 2017).
On July 21, 2017, the parties filed a joint motion to
expedite the Government’s appeal, which we granted.
We now turn to the merits of the Government’s appeal.
II
We have jurisdiction under 28 U.S.C. § 1292(a)(1). “We
review de novo the legal premises underlying a preliminary
injunction” and “review for abuse of discretion the terms of
a preliminary injunction.” A&M Records, Inc. v. Napster,
Inc., 284 F.3d 1091, 1096 (9th Cir. 2002). “As long as the
district court got the law right, it will not be reversed simply
because [we] would have arrived at a different result if [we]
had applied the law to the facts of the case.” Id. (alterations
in original) (quoting Gregorio T. v. Wilson, 59 F.3d 1002,
1004 (9th Cir. 1995)). The district court has the power to

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18 S TATE OF HAWAII V. TRUMP
supervise compliance with an injunction and to “modify a
preliminary injunction in consideration of new facts.” Id. at
1098; accord Fed. R. Civ. P. 62(c). “A party seeking
modification . . . of an injunction bears the burden of
establishing that a significant change in facts or law warrants
revision . . . of the injunction.” Sharp v. Weston, 233 F.3d
1166, 1170 (9th Cir. 2000).
III
On appeal, the Government contends that the district
court disturbed the status quo “by significantly expanding
the preliminary injunction beyond the limits of the stay.”
The Government argues that the district court erred in
modifying the preliminary injunction to bar its enforcement
against: (1) certain family members, including grandparents,
grandchildren, brothers-in-law, sisters-in-law, aunts, uncles,
nieces, nephews, and cousins; and (2) refugees for whom the
Department of State has obtained an assurance from a U.S.-
based resettlement agency, as well as refugees in USRAP
through the Lautenberg Program.
A
We first address the Government’s challenge of the
district court’s modified preliminary injunction that enjoins
the Government from enforcing the Executive Order against
grandparents, grandchildren, brothers-in-law, sisters-in-law,
aunts, uncles, nieces, nephews, and cousins of persons in the
United States. See Hawai‘i, 2017 WL 2989048, at *5–6,
*10.
Emphasizing that the Supreme Court limited the
injunction to aliens who have “close familial relationships”
with a person in the United States, the Government argues
that it appropriately construed the stay to include only

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S TATE OF HAWAII V. TRUMP 19
immediate relationships such as parents, parents-in-law,
spouses, fiancés, children, adult sons or daughters, sons-in-
law, daughters-in-law, siblings (whole or half), and step-
relationships, but to exclude “more distant relatives.” The
Government argues that it justifiably drew these lines by
relying on provisions of the INA and because the Supreme
Court’s weighing of the equities approvingly cited the
Executive Order’s waiver provision.
The Government unreasonably interprets the Supreme
Court’s reference to “close familial relationship[s].” Trump,
137 S. Ct. at 2088. The Supreme Court granted the stay
“with respect to foreign nationals who lack any bona fide
relationship with a person or entity in the United States.” Id.
at 2087 (emphasis added). The Court criticized the lower
courts’ preliminary injunctions because the injunctions
barred enforcement of the Executive Order “against foreign
nationals abroad who have no connection to the United
States at all.” Id. at 2088 (emphasis added). The Court
explained that, in considering the stay, the balance of
equities favored the Government because an injunction
covering “foreign nationals unconnected to the United
States” would “appreciably injure [the Government’s]
interests, without alleviating obvious hardship to anyone
else.” Id. (emphasis added); see also id. (“[T]he
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.” (emphasis added)).
In crafting the stay, the Supreme Court “balance[d] the
equities,” id. at 2087, and declined to stay the injunction for
foreign nationals whose exclusion would burden any
American party by inflicting “concrete . . . hardships,” id. at
2088. The Supreme Court went on to illustrate the types of

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20 S TATE OF HAWAII V. TRUMP
qualifying “close” familial relationships, explaining, “[a]
foreign national who wishes to enter the United States to live
with or visit a family member, like Doe’s wife or Dr.
Elshikh’s mother-in-law, clearly has such a relationship.”
Id. (emphasis added).
From this explanation, it is clear that the Supreme
Court’s use of “close familial relationship[s]” meant that the
Court wanted to exclude individuals who have no connection
with the United States or have remote familial relationships
that would not qualify as “bona fide.”5 Id. The Government
does not meaningfully argue how grandparents,
grandchildren, brothers-in-law, sisters-in-law, aunts, uncles,
nieces, nephews, and cousins of persons in the United States
can be considered to have “no connection” to or “lack any
bona fide relationship” with persons in the United States.
Nor does the Government explain how its proposed scope of
exclusion would avoid the infliction of concrete hardships
on such individuals’ family members in the United States.
Stated simply, the Government does not offer a persuasive
explanation for why a mother-in-law is clearly a bona fide
relationship, in the Supreme Court’s prior reasoning, but a
grandparent, grandchild, aunt, uncle, niece, nephew, or
cousin is not.
The Government contends that it drew this particular
familial boundary based on the text of the INA. Section 201
of the INA pertains to aliens “who are not subject to the
worldwide levels or numerical limitations” of immigrant
visas and defines “immediate relatives” as “the children”
(unmarried children under the age of twenty-one), “spouses,
5 A “bona fide” relationship is one “[m]ade in good faith; without
fraud or deceit” or a “[s]incere; genuine” relationship. Bona Fide,
B LACK’S L AW D ICTIONARY (10th ed. 2014).

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S TATE OF HAWAII V. TRUMP 21
and parents of a citizen of the United States.” 8 U.S.C.
§ 1151(b)(2)(A)(i); see id. § 1101(b)(1). Section 203, which
concerns the allocation of immigrant visas, prioritizes sons
and daughters of U.S. citizens; siblings of U.S. citizens (if
the citizen is at least twenty-one years of age); and spouses,
unmarried sons, and unmarried daughters of permanent
resident aliens. Id. § 1153(a). The Government points out
that the INA also recognizes the fiancé relationship. See id.
§§ 1101(a)(15)(K), 1184(d).
There are at least two problems with the Government’s
justification. First, there is no support for the proposition
that the Supreme Court’s equitable decision was informed
by technical definitions of family from the INA. Indeed, the
Court’s conclusion that mothers-in-law—a close familial
relationship not recognized by the sections of the INA upon
which the Government relies—are “clearly” covered by the
injunction indicates that the Court did not intend to limit the
injunction to only the family relationships recognized in the
specific provisions of the INA identified by the Government.
Rather than rely on the INA’s definition for “immediate
relatives” to define “close familial relationships,” the
Supreme Court instead focused its consideration on the
harms faced by persons in the United States based on the
denial of entry of foreign nationals with whom they have
bona fide relationships. In doing so, the Supreme Court
deployed fundamental equitable considerations that have
guided American law for centuries.
Second, the Government’s reference to its favored INA
provisions is unduly narrow and selective. Sections 201 and
203 deal only with those seeking lawful permanent residence
in the United States. Given that the Executive Order bars
entry for even those seeking temporary admission with non-
immigrant visas, it does not follow that provisions dealing

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22 S TATE OF HAWAII V. TRUMP
with permanent residence in the United States should
properly inform whether foreign nationals have “bona fide
relationships” that are exempt from the Executive Order.6
Persons in the United States affected by the exclusion extend
beyond those petitioning for an immediate relative to live
permanently in the United States.
But even if the INA may inform the construction of
“close familial relationship[s],” the Government’s decision
to rely on the cited specific provisions of the INA is
troubling because other provisions of the INA (and other
immigration laws) offer broader definitions. In the Family
Sponsor Immigration Act of 2002, for example, Congress
amended the INA to provide that when the sponsor of an
alien’s immigrant visa petition has died, another member of
the alien’s “close family”—defined to include family
members such as “sister-in-law, brother-in-law,
grandparent, or grandchild”—could sponsor the alien for
admission. Pub. L. No. 107-150, § 2(a) (codified at 8 U.S.C.
§ 1183a(f)(5)). In other words, the INA explicitly refers to
sisters-in-law, brothers-in-law, grandparents, and
grandchildren as close family. The Government’s “cherry-
picked” INA provisions recognize immediate family
relationships as those between parents, spouses, children,
and siblings, yet other provisions of the INA and other
immigration laws offer broader definitions for close family.
As Plaintiffs further point out, other immigration laws
6 Such provisions, like those relating to aliens wishing to travel
or visit family in the United States on short-term, non-immigrant
visas, do not impose any familial relationship-based requirements at
all. See, e.g., 8 U.S.C. § 1101(a)(15)(B); Directory of Visa Categories,
U.S. Dep’t of State, https://travel.state.gov/content/visas/en/general/all-
visa-categories.html (last visited Aug. 29, 2017).

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S TATE OF HAWAII V. TRUMP 23
enable an individual to seek admission on behalf of aunts,
uncles, and close blood relatives.7
The Government offers no explanation as to why it relied
on its selected provisions of the INA, while ignoring other
provisions of the same statute as well as other immigration
laws. The INA was implemented with “the underlying
intention of . . . preservation of the family unit.” H.R. Rep.
No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1653,
1680. The Government’s artificially narrow interpretation
of close familial relationships directly contradicts this
intention.
The Government next contends that the Supreme Court
approvingly cited the Executive Order’s waiver provision
7 For example, Plaintiffs cite an immigration law that permits a
juvenile alien to be released from detention to the custody of parents,
legal guardians, or “other close blood relatives.” Reno v. Flores,
507 U.S. 292, 310 (1993). Such relatives include “brother, sister, aunt,
uncle, [and] grandparent.” Id. at 297 (quoting 8 C.F.R. § 242.24(b)(1),
recodified at 8 C.F.R. § 236.3(b)(1)(iii)). Other immigration laws enable
an individual to seek admission on behalf of grandchildren, nieces, or
nephews, see 81 Fed. Reg. 92266, 92280 (Dec. 19, 2016); to apply for
asylum if a “grandparent, grandchild, aunt, uncle, niece, or nephew”
resides in the United States, 69 Fed. Reg. 69480, 69488 (Nov. 29, 2004);
to apply for naturalization on behalf of a grandchild, 8 U.S.C. § 1433(a);
or to qualify as a special immigrant if he or she is the “grandparent” of a
child orphaned by the September 11, 2001 attacks, USA PATRIOT Act
of 2001, Pub. L. No. 107-56, § 421(b)(3). The Board of Immigration
Appeals has also held that an alien has “close family ties in the United
States” for purposes of obtaining cancellation of removal or waiver of
inadmissibility if a sibling-in-law or grandchild lives here. See, e.g., In
re Mulholland, No. A42 655 803 - DALL, 2007 WL 2299644, at *1 (BIA
July 12, 2007) (considering mother, step-father, and brother-in-law as
close family ties); In re Gomez, No. A28 911 501 - DANB, 2006 WL
2391225, at *1 (BIA July 6, 2006) (considering children and
grandchildren as close family ties).

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24 S TATE OF HAWAII V. TRUMP
when describing the equities that the Court weighed in
partially granting the stay. The Executive Order sets out a
number of case-by-case waivers, including one for a foreign
national seeking “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, and
the denial of entry during the suspension period would cause
undue hardship.” 82 Fed. Reg. at 13214. The Supreme
Court cited to this waiver provision as further evidence in
support of its conclusion that the equities “do not balance the
same way” for all parties. Trump, 137 S. Ct. at 2088. In the
Supreme Court’s view, the Executive Order’s allowance for
waivers serves as evidence that even the Government
distinguishes between “foreign nationals who have some
connection to this country, and foreign nationals who do
not.” Id. Moreover, the waiver provision does not state or
imply that the waiver for close family members gives an
exhaustive list of qualifying relationships. The waiver
provision on its face only notes examples of the types of
relationships that the Executive Order considers “close.”
This list does not include fiancés, siblings, and parents-in-
law, which are familial relationships that the Government
now includes in its guidance. Nor did the Supreme Court’s
stay order import these examples as the only types of close
family relationships that should fall within the scope of the
injunction. To reiterate, the Supreme Court’s stay order
considered whether a foreign national lacked any bona fide
relationship with a person in the United States. It is hard to
see how a grandparent, grandchild, aunt, uncle, niece,
nephew, sibling-in-law, or cousin can be considered to have
no bona fide relationship with their relative in the United
States.

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S TATE OF HAWAII V. TRUMP 25
Finally, the Government argues that the district court
erred by creating a much larger exception “unmoored from
the INA and the Order’s waiver provision” by referring to
Dr. Elshikh’s mother-in-law. The Government urges that
Dr. Elshikh’s wife is a U.S. citizen, and that “parents-in-law
of persons in the United States will typically also be parents
of persons in the United States.” The Supreme Court,
however, did not rely on the relationship between Dr.
Elshikh’s wife and her mother. Instead, the Court
emphasized the relationship between Dr. Elshikh and his
mother-in-law—who “clearly [have] such a [close familial]
relationship.” Trump, 137 S. Ct. at 2088. Plaintiffs correctly
point out that the familial relationships the Government
seeks to bar from entry are within the same “degree of
kinship” as a mother-in-law. See Moore v. City of E.
Cleveland, 431 U.S. 494, 505–06 (1977) (plurality). As
Plaintiffs aptly state, “[a] brother-in-law is the brother of a
person’s spouse; a niece is the daughter of one’s brother or
sister. These relations are just as ‘close,’ if not closer, than
the mother of a person’s spouse.” If mothers-in-law clearly
fall within the scope of the injunction, then so too should
grandparents, grandchildren, brothers-in-law, sisters-in-law,
aunts, uncles, nieces, nephews, and cousins.
We find further support in other Supreme Court
decisions, albeit that arise in different contexts from
immigration law, for this broad definition of “close familial
relationship.” These cases show how the denial of entry can
cause concrete hardship to family members in the United
States. In Moore v. City of East Cleveland, the Court
invalidated as unconstitutional a housing ordinance that
limited occupancy of a dwelling unit to members of a nuclear
family. 431 U.S. at 495–96, 506. The Court discussed “a
larger conception of [] family,” derived from “the
accumulated wisdom of civilization, gained over the

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26 S TATE OF HAWAII V. TRUMP
centuries and honored throughout our history,” that was
worthy of constitutional protection. Id. at 505. To that end,
the Court recognized and protected the tradition of “close
relatives”—“uncles, aunts, cousins, and especially
grandparents”—“sharing a household along with parents
and children.” Id. at 504–05. Other cases have likewise
addressed extended family relationships. See Troxel v.
Granville, 530 U.S. 57, 64–65 (2000) (discussing the
“important role” grandparents often play); Tooahnippah v.
Hickel, 397 U.S. 598, 608 (1970) (noting the “close and
sustained familial relationship” between a testator and his
niece). In these cases, the Court described the importance of
close relatives such as grandparents, aunts, uncles, nieces,
nephews, and cousins. The recognition of close family
relationships, whether in particular INA statutory provisions
or in other Supreme Court cases describing family
relationships, are relevant to determining the proper scope of
the Supreme Court’s June 26, 2017 stay order.
In sum, the district court did not err in rejecting the
Government’s restricted reading of the Supreme Court’s
June 26, 2017 stay ruling and in modifying the injunction to
prohibit enforcement of the Executive Order against
grandparents, grandchildren, brothers-in-law, sisters-in-law,
aunts, uncles, nieces, nephews, and cousins of persons in the
United States.8 Denying entry to these foreign nationals
8 We reject the Government’s invitation to “evaluate the [familial]
relationships separately rather than on a blanket basis,” for all
relationships or at least for siblings-in law, cousins, aunts, uncles, nieces,
and nephews. That argument is without merit because it starts from the
false premise that each individual must prove a close family relationship,
while the Supreme Court clearly intended the exception to the stay order
to allow continuing relief to the categories of persons with a close family
relationship without additional inquiry. Moreover, the Government did
not raise this argument regarding the scope of the injunction before the

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S TATE OF HAWAII V. TRUMP 27
would burden persons in the United States “by reason of that
party’s relationship with the foreign national.”9 Trump,
137 S. Ct. at 2088.
B
We next address the Government’s challenge to the
district court’s modified injunction that enjoins the
Government from excluding refugees covered by formal
assurances.10 See Hawai‘i, 2017 WL 2989048, at *7. The
district court, and has therefore waived it. See Armstrong v. Brown,
768 F.3d 975, 981 (9th Cir. 2014) (explaining that a party waived
arguments about scope of injunction by not raising them before the
district court). The Government also does not meaningfully argue the
distinction between a grandparent and the other familial relationships it
seeks to exclude from the modified injunction.
9 In a related argument, the Government challenges the district
court’s modified injunction with respect to the Lautenberg Program—a
program “permit[ting] certain nationals of the former Soviet Union and
other countries with ‘close family in the United States’ to apply for
refugee status.” Hawai’i, 2017 WL 2989048, at *9 (citing U.S. Dep’t of
State, Proposed Refugee Admissions for Fiscal Year 2017 (Sept. 15,
2016), https://www.state.gov/j/prm/releases/docsforcongress/261956.htm).
The Government’s challenge regards the Lautenberg Amendment’s
inclusion of grandparents and grandchildren as qualifying “close
family.” See Public Law No. 1010-167, § 599, 103 Stat. 1261 (1989)
(codified at 8 U.S.C. § 1157). Because the district court did not err in its
analysis of what constitutes a “close familial relationship,” it did not err
by modifying the injunction as to refugees in USRAP through the
Lautenberg Program.
10 Notably, many refugees lack close familial relationships with
persons in the United States, and the Government’s interpretation of the
Supreme Court’s stay order interposes another barrier for refugees
seeking admission into the United States. See Declaration of Erol Kekic,
Executive Director of Church World Service, Dist. Ct. Dkt. No. 344-1 at
1–2 (noting that more than one-thousand refugees with formal

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28 S TATE OF HAWAII V. TRUMP
Government’s guidance had specified that “[t]he fact that a
resettlement agency in the United States has provided a
formal assurance for a refugee seeking admission . . . is not
sufficient in and of itself to establish a qualifying
relationship for that refugee with an entity in the United
States.” U.S. Dep’t of State, Fact Sheet: Information
Regarding the U.S. Refugee Admissions Program, June 30,
2017, https://www.state.gov/j/prm/releases/factsheets/2017/
272316.htm.
The Government argues that the district court erred
because a formal assurance denotes the relationship between
a resettlement organization and the Department of State, not
a relationship between the organization and the refugee. The
Government also contends that affirming the district court
would mean that the Supreme Court’s stay would cover
“virtually no refugee” because about 24,000 refugees have
been assured.
As the district court correctly identified, a refugee is
covered by the preliminary injunction, as modified by the
Supreme Court’s stay order, if the refugee has a bona fide
relationship with an entity in the United States, meaning a
relationship that is formal, documented, and formed in the
ordinary course rather than to evade the Executive Order.
See Trump, 137 S. Ct. at 2088–89. Applying this standard,
the district court held that formally assured refugees have
bona fide relationships with resettlement agencies and are
covered by the injunction because the assurance is formal,
documented, and formed in the ordinary course rather than
to evade the Executive Order. Mindful of the narrow
standard that governs our review, we affirm, considering the
assurances from Church World Service do not have a qualifying family
relationship as defined by the Government).

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S TATE OF HAWAII V. TRUMP 29
individualized screening process necessary to obtain a
formal assurance and the concrete harms faced by a
resettlement agency because of that refugee’s exclusion.
1
It typically takes a refugee applicant eighteen to twenty-
four months to successfully complete the application and
screening process before he or she can be resettled in the
United States. Most refugees first register with the United
Nations High Commissioner for Refugees (“UNHCR”) in
the country to which he or she has fled. UNHCR interviews
each refugee applicant and collects identifying documents.
After UNHCR determines that an applicant meets the United
States’ criteria for resettlement consideration and presents
no disqualifying information, UNHCR refers the case to a
U.S. Embassy, which then sends the case to one of nine
Resettlement Support Centers (“RSC”). An RSC, under the
guidance of the State Department, next refers an applicant
for resettlement consideration and helps with completing
other technical requirements. The RSC interviews the
applicant, collects identification documents and information,
and initiates security checks.
United States Citizenship and Immigration Services
(“USCIS”), a component of the Department of Homeland
Security, then conducts a personal interview with the refugee
in the country in which the refugee is located and determines
whether the applicant qualifies for refugee status under U.S.
law and meets other resettlement criteria. A refugee who
meets these qualifications is then security screened. USCIS
next notifies the Bureau of Population, Refugees, and
Migration (“PRM”), a division of the State Department, that
a refugee applicant is approved. The applicant then
undergoes medical screening.

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30 S TATE OF HAWAII V. TRUMP
After refugees have cleared these hurdles,11 the RSC
then obtains a “sponsorship assurance” from one of nine
private non-profit organizations, known as resettlement
agencies.12 All refugees receive a sponsorship assurance
from a resettlement agency before they travel to the United
States. The assurance is a “written commitment, submitted
by a [resettlement agency], to provide, or ensure the
provision of, the basic needs . . . and core services . . . for the
refugee(s) named on the assurance form.” As of June 30,
2017, 23,958 refugees had formal assurances from a
resettlement agency. Resettlement agencies determine the
best resettlement location for a refugee candidate, and
consider whether a refugee has family ties in a certain
locality, whether the local agency has the language skills
necessary to communicate with the refugee, whether the
refugee’s medical needs can be addressed in the local
community, and whether employment opportunities are
available and accessible.
Once an applicant has been approved for resettlement,
the applicant has passed all required medical exams, and the
RSC has obtained the necessary sponsorship assurance from
11 The sum total of these hurdles means that refugees with formal
assurances have been reviewed by: UNHCR, the National
Counterterrorism Center, the Federal Bureau of Investigation, the
Department of Homeland Security, the Department of Defense, the
Department of State, and others in the U.S. intelligence community.
12 The nine resettlement agencies are: Church World Service,
Episcopal Migration Ministries, Ethiopian Community Development
Council, HIAS, International Rescue Committee, Lutheran Immigration
and Refugee Service, United States Committee for Refugees and
Immigrants, United States Conference of Catholic Bishops, and World
Relief.

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S TATE OF HAWAII V. TRUMP 31
the resettlement agency, the RSC only then refers the case
for transportation to the United States through a PRM-
funded program.13 Once a refugee reaches his or her
resettlement location in the United States, the resettlement
agency and its local affiliate facilitate the initial reception;
provide core services, including housing, furnishings,
seasonal clothing, and food; and assist in obtaining medical
care, employment, educational services, and other needed
services.
2
Plaintiffs, as well as amici curiae, discuss two types of
concrete hardships that will be faced by resettlement
agencies and local affiliates if formally assured refugees are
barred: (1) tangible injuries through the loss of invested
resources and financial support; and (2) intangible injuries
from the inability to effectuate their spiritual and moral
missions.14
Tangible Injuries: A resettlement agency provides pre-
arrival services for a formally assured refugee and engages
in an intensive process to match the individual to resources
13 According to amici curiae the International Refugee Assistance
Project and HIAS, Inc., a refugee who has received an assurance
typically travels to the United States within two to six weeks, and must
take care of matters such as selling possessions and terminating leases.
14 Other entities, including church congregations, volunteers, and
landlords, who must wait to learn whether refugees with an assurance
will be admitted, also will experience harm. For example, resettlement
organizations recruit foster families in the United States for refugee
children living abroad without parental support, and refugee children
receive an assurance after they have been assigned to a foster family or
other placement. Enforcing the Executive Order against such children
harms American families who are waiting to welcome them.

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32 S TATE OF HAWAII V. TRUMP
even before the refugee is admitted. These efforts, which the
formal assurance embodies, evince a bona fide relationship
between a resettlement agency and a refugee, and further
demonstrate the hardship inflicted on an agency if a refugee
is not admitted. Once an agency provides an assurance, but
before the refugee arrives in the United States, the agency
makes substantial investments in preparing for resettlement.
See Declaration of Mark Hetfield, President and CEO of
HIAS, Inc., Dist. Ct. Dkt. No. 336-2 at 6, ¶ 18 (“After a
refugee has been given an assurance, but before the refugee
has been issued a visa, HIAS and its affiliates begin the
involved process of arranging for the reception, placement,
and appropriate initial resettlement assistance for the
refugee.”); see also Brief of Amicus Curiae U.S. Committee
for Refugees and Immigrants in Support of Plaintiffs-
Appellees (“USCRI Amicus Brief”), Dkt. No. 51 at 7 (“Most
of the groundwork USCRI and the local agency perform in
integrating a refugee into a community is the result of
significant investments of money, time, effort, and emotion
made after USCRI provides its written assurance of services
to the State Department, but before the refugee arrives
here.”). If a refugee does not arrive in the United States, or
is delayed in arriving, the agency will lose the money and
resources it has already expended in preparing for arrival,
including securing rental housing, buying furniture, and
arranging for basic necessities. Cf. Vill. of Arlington Heights
v. Metro Hous. Dev. Corp., 429 U.S. 252, 262–63 (1977)
(determining that a nonprofit real estate developer had a
sufficient injury to confer standing based on resources
expended on planning and studies in anticipation of a
project).
Resettlement agencies will not receive expected
Government reimbursements if a refugee with a formal
assurance is not admitted. Each agency receives partial grant

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S TATE OF HAWAII V. TRUMP 33
funding from the Government for the resettlement services
it performs on behalf of each particular refugee covered by
an assurance. Resettlement agencies and their affiliates
advance these funds, for example, to secure lodging,
purchase furniture, clothing and other necessities, and
receive reimbursement from the State Department the month
after the refugee’s arrival in the United States. See
Declaration of Mark Hetfield, President and CEO of HIAS,
Inc., Dist. Ct. Dkt. No. 336-2 at 7, ¶ 22; USCRI Amicus
Brief, Dkt. No. 51 at 7. Reimbursements are withheld,
however, if a refugee does not arrive in the United States.
For USCRI, these per capita payments accounted for over
$25 million—nearly 43% of its total revenue—for the fiscal
year ending September 30, 2016. USCRI Amicus Brief,
Dkt. No. 51 at 7. Since mid-June 2017, USCRI has been
forced to lay off 17 full-time employees and its partner
affiliates have laid off an additional 70 employees. USCRI
Amicus Brief, Dkt. No. 51 at 13. USCRI plans to make
additional layoffs in the next two months, and has already
cut employee benefits by more than $1 million. USCRI
Amicus Brief, Dkt. No. 51 at 13. Resettlement agencies
experience concrete hardship through the loss of federal
funds withheld. Cf. Exodus Refugee Immigration, Inc. v.
Pence, 165 F. Supp. 3d 718, 730 (S.D. Ind. 2016) (holding
that loss of federal funding to a resettlement nonprofit is an
Article III injury), aff’d, 838 F.3d 902 (7th Cir. 2016).
Intangible Injuries: Resettlement agencies also will face
non-economic harms if formally assured refugees are barred
from entry. Assisting refugees and providing humanitarian
aid are central to the core belief systems of resettlement
entities and their employees. Efforts to work on behalf of
marginalized and vulnerable populations are undercut when
the Government bars from entry formally assured refugees.
Cf. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 (D.C.

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34 S TATE OF HAWAII V. TRUMP
Cir. 1987) (holding that a nonprofit satisfied Article III
standing, including its injury component, where the
nonprofit alleged that the government’s interdiction program
thwarted its organizational purpose).
Resettlement agencies have bona fide relationships with
refugees seeking to be admitted to this country and “can
legitimately claim concrete hardship if [these refugees are]
excluded.” Trump, 137 S. Ct. at 2089. Other courts have
identified harms as evidence of a legally cognizable
relationship between a resettlement organization and a
refugee for whom it provided a formal assurance. For
example, in Exodus Refugee Immigration, Inc. v. Pence, the
State of Indiana had directed state agencies not to pay federal
grant funds to local refugee resettlement agencies for
services the agencies provided to Syrian refugees. 165 F.
Supp. 3d at 726–27. In concluding that the nonprofit had
third-party standing, the district court determined that the
resettlement organization “undoubtedly ha[d] a sufficiently
close relationship” that was “current [and] ongoing” with the
specific refugees it had been assigned to resettle “in the next
few weeks or months.” Id. at 732 (internal quotation marks
omitted).
The Government contends that a formal assurance does
not create a bona fide relationship between a resettlement
agency and a refugee, and stresses that “[t]he assurance is
not an agreement between the resettlement agency and the
refugee; rather, it is an agreement between the agency and
the federal government.” But the Supreme Court’s stay
decision specifies that a qualifying relationship is one that is
“formal, documented, and formed in the ordinary course,
rather than for the purpose of evading [the Executive
Order].” Trump, 137 S. Ct. at 2088. We cannot say that the
district court clearly erred in its factual findings or ultimately

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abused its discretion in holding that the written assurance an
agency submits, obligating the agency to provide core
services for the specific refugee(s) listed on the assurance
form, meets the requirements set out by the Court. Although
the assurance is technically between the agency and the
Government, the Government’s intermediary function does
not diminish the bona fide relationship between the
resettlement agency and the specific refugee covered by the
assurance.15 Before signing the formal assurance, the
agency undertakes a careful selection process that
“match[es] the particular needs of each incoming refugee
with the specific resources available in a local community.”
U.S. Dep’t of State, The Reception and Placement Program,
https://www.state.gov/j/prm/ra/receptionplacement/ (last
visited Aug. 5, 2017). After the assurance is executed but
before the refugee arrives, the agency makes extensive
preparations that are individualized to each refugee. This
advance preparation and expenditure of resources supports
the district court’s determination that a bona fide relationship
with the refugee exists.
Even if a resettlement agency does not have “direct
contact” with a refugee before arrival, this does not negate
the finding that a relationship has formed. The agency still
expends resources and arranges for individualized services
based on the specific refugees that the agency has agreed to
resettle. Further, relationships can exist even without direct
contact between the foreign national and the entity, as
demonstrated by three examples of qualifying non-familial
relationships in the Supreme Court’s June 26, 2017 stay
15 In fact, at oral argument, the government conceded as much
stating, “We acknowledge that if an alien had a relationship with a U.S.
entity indirectly, through an intermediary, that would count.” Oral Arg.
Vid. at 14:19–14:27.

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36 S TATE OF HAWAII V. TRUMP
order. See Trump, 137 S. Ct. at 2088. An academic’s lecture
may be arranged through her organization, rather than
between the academic and the American university. An
employer may make a job offer to a foreign national through
a third-party recruiter. An applicant may apply and receive
an offer of admission through a coordinating organization
separate from the university. And, likewise, a resettlement
agency commits to provide basic needs and core services to
a specific refugee through the formal assurance it executes
with the Government.
The Government also raises concerns that because about
24,000 refugees have been assured, the district court’s ruling
causes the Supreme Court’s stay order to “cover[] virtually
no refugee” and renders the order inoperative. The Supreme
Court’s stay considered the concrete hardship of U.S.-based
persons and entities. See Trump, 137 S. Ct. at 2088–89. The
Court’s equitable decision did not express concern about the
number of refugees that would fall within the scope of the
injunction; rather, the Court’s order clarifies that the
Government is still enjoined from enforcing the 50,000-
person cap of § 6(b) to exclude refugees who have a bona
fide relationship with a U.S. person or entity and are
otherwise eligible to enter the United States. Id. at 2089.
Furthermore, the Government’s assertion that the
modified injunction renders the Court’s stay order
inoperative is false. More than 175,000 refugees currently
lack formal assurances. Without another bona fide
relationship with a person or entity in the United States, the
Executive Order suspends those refugees’ applications. See
U.S. Dep’t of Homeland Security, Frequently Asked
Questions on Protecting the Nation from Foreign
Terrorist Entry into the United States at Q.27,
https://www.dhs.gov/news/2017/06/29/frequently-asked-

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S TATE OF HAWAII V. TRUMP 37
questions-protecting-nation-foreign-terrorist-entry-united-
states (last visited Aug. 30, 2017) (“USCIS officers have
been instructed that they should not approve a refugee
application unless the officer is satisfied that the applicant’s
relationship complies with the requirement to have a credible
claim of a bona fide relationship with a person or entity in
the United States and was not formed for the purpose of
evading the Executive Order.”).
Resettlement agencies will face concrete harms and
burdens if refugees with formal assurances are not admitted.
In the same way that the Court considered the harms of the
U.S. citizen who wants to be reunited with his mother-in-law
and the permanent resident who wants to be reunited with
his wife, the employer that hired an employee, the university
that admitted a student, and the American audience that
invited a lecturer, the district court correctly considered the
resettlement agency that has given a formal assurance for
specific refugees. The district court did not abuse its
discretion with regard to this portion of the modified
preliminary injunction.
IV
Our decision affirming the district court’s modified
preliminary injunction will not take effect until the mandate
issues, which would not ordinarily occur until at least
52 days after this opinion is filed. See Fed. R. App. P. 41;
Fed. R. App. P. 40(a)(1).
Refugees’ lives remain in vulnerable limbo during the
pendency of the Supreme Court’s stay. Refugees have only
a narrow window of time to complete their travel, as certain
security and medical checks expire and must then be re-
initiated. Even short delays may prolong a refugee’s
admittance.

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38 S TATE OF HAWAII V. TRUMP
Because this case is governed by equitable principles,
and because many refugees without the benefit of the
injunction are gravely imperiled, we shorten the time for the
mandate to issue. See Fed. R. App. P. 41(b). The mandate
shall issue five days after the filing of this opinion.
V
We affirm the district court’s order modifying the
preliminary injunction. The mandate shall issue five days
after the filing of this opinion.
AFFIRMED.

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