No. 17-965 In the Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. STATE OF HAWAII, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOINT APPENDIX NOEL J. FRANCISCO NEAL KUMAR KATYAL Solicitor General Hogan Lovells US LLP Department of Justice 555 Thirteenth St., N.W. Washington, D.C. 20530-0001 Washington, D.C. 20004 [email protected] [email protected] (202) 514-2217 (202) 637-5528 Counsel of Record Counsel of Record for Petitioners for Respondents PETITION FOR A WRIT OF CERTIORARI FILED: JAN. 5, 2018 CERTIORARI GRANTED: JAN. 19, 2018 TABLE OF CONTENTS Page Relevant Docket Entries: Court of Appeals Docket Entries (No. 17-17168) .......... 1 District Court Docket Entries (No. 17-cv-50) ............. 15 Relevant Pleadings: Third Amended Complaint for Declaratory and Injunctive Relief (D. Haw. Oct. 15, 2017) .............. 107 Exhibits to Plaintiffs’ Third Amended Complaint: Exhibit 2: Donald Trump Statement on Preventing Muslim Immigration .................. 158 Exhibit 3: Washington Post, ‘I think Islam hates us’: A timeline of Trump’s comments about Islam and Muslims ............. 159 Exhibit 4: July 24, 2016 Transcript of NBC Interview of Donald Trump by Chuck Todd on Meet the Press ..................................... 169 Exhibit 5: Washington Post, Trump asked for a ‘Muslim ban,’ Giuliani says—and ordered a commission to do it ‘legally’ ........... 228 Exhibit 6: Dep’t of State, Dissent channel: Alternatives to Closing Doors in Order to Secure Our Borders ..................................... 234 Exhibit 7: Statement by Senators McCain and Graham on Execution Order on Immigration ...................................................... 242 Exhibit 8: Draft Report, Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States .............................. 244 Exhibit 9: Dep’t of Homeland Sec., Intelligence Assessment ................................... 250 (I) II Table of Contents—Continued: Page Declaration of Deirdre Marie-Iha in Support of Plaintiffs’ Motion for Temporary Restraining Order and Exhibits ........................................................... 275 Exhibit A: Declaration of John Doe #1 ..................... 285 Exhibit B: Declaration of John Doe #2 ..................... 288 Exhibit C: Declaration of Jane Doe #3 ..................... 290 Exhibit D: Declaration of John Doe #4 ..................... 295 Exhibit E: Declaration of John Doe #5 ..................... 299 Exhibit F: Declaration of Donald O. Straney ............ 303 Exhibit G: Declaration of Gaye Chan ......................... 309 Exhibit H: Declaration of Nandita Sharma ............... 313 Exhibit I: Declaration of Ismail Elshikh ................... 318 Exhibit J: Declaration of George Szigeti ................... 324 Exhibit K: Declaration of Luis P. Salaveria .............. 331 Exhibit L: Declaration of Hakim Ouansafi ................ 338 Declaration of Neal K. Katyal in Support of Plaintiffs’ Motion for Temporary Restraining Order and Exhibit ............................................................. 344 Exhibit M: Joint Declaration of Former National Security Officials ..................................................... 346 Lower-Court Rulings: District Court Order Granting Motion for Temporary Restraining Order (D. Haw. Mar. 15, 2017) ........................................................... 368 District Court Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction (D. Haw. Mar. 29, 2017) ........................................................... 410 Signed Joint Stipulation to Convert Temporary Restraining Order to a Preliminary Injunction (D. Haw. Oct. 20, 2017) ......................... 432 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Docket No. 17-17168 STATE OF HAWAII, ET AL., PLAINTIFFS-APPELLEES v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, ET AL., DEFENDANTS-APPELLANTS DOCKET ENTRIES DOCKET DATE NUMBER PROCEEDINGS 10/24/17 1 DOCKETED CAUSE AND EN- TERED APPEARANCES OF COUNSEL. SEND MQ: Yes. 9th Circuit Rule 3-3 Preliminary Injunction Appeal. [10629183] (HH) [Entered: 10/24/2017 10:26 AM] * * * * * 10/25/17 5 Filed (ECF) Appellants John F. Kelly, Rex W. Tillerson, Donald J. Trump, U.S. Department of State, USA and USDHS Unop- posed Motion for miscellaneous relief [motion in preliminary in- junction appeal to establish expe- dited briefing schedule negotiated by the parties]. Date of (1) 2 DOCKET DATE NUMBER PROCEEDINGS service: 10/25/2017. [10630849] [17-17168] (Murphy, Anne) [En- tered: 10/25/2017 10:52 AM] * * * * * 10/25/17 8 Filed order (MICHAEL DALY HAWKINS, RONALD M. GOULD and RICHARD A. PAEZ) The parties’ emergency motion to expedite the briefing of the emer- gency stay motion and the brief- ing of this preliminary injunction appeal is granted (Docket Entry No. [5]). The opposition to the emergency motion for stay is due October 31, 2017. The reply in support of the motion is due No- vember 2, 2017. The opening brief is due November 2, 2017; the answering brief is due No- vember 18, 2017; and the optional reply brief is due November 29, 2017. The parties’ request for expedited oral argument will be addressed by separate order. [10631237] (ME) [Entered: 10/25/2017 01:39 PM] 10/26/17 9 Filed order (MICHAEL DALY HAWKINS, RONALD M. GOULD and RICHARD A. PAEZ) Appellants’ request for an imme- diate administrative stay, con- 3 DOCKET DATE NUMBER PROCEEDINGS tained in the motion for an emer- gency stay, will be addressed to- gether with the emergency mo- tion. The briefing schedule for this appeal is amended to reflect that any amicus brief is due No- vember 22, 2017. Oral argument will take place on December 6, 2017, at 2:00 p.m. PST in Seattle, Washington. Each side will be allocated 30 minutes of time. [10632338] (ME) [Entered: 10/26/2017 10:42 AM] 10/26/17 10 Notice of Oral Argument on Wed- nesday, December 6, 2017—2:00 P. M . —SE 7th Flr Courtroom 2— Seattle WA. View the Oral Argument Calen- dar for your case here. Be sure to review the GUIDE- LINES for important informa- tion about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in ad- vance of the hearing as possible). When you have reviewed the cal- endar, download the ACKNOW- LEDGMENT OF HEARING NOTICE form, complete the 4 DOCKET DATE NUMBER PROCEEDINGS form, and file it via Appellate ECF or return the completed form to: SEATTLE Office. [10632612] (AW) [Entered: 10/26/2017 11:43 AM] 10/30/17 11 Filed (ECF) STATE OF WASH- INGTON; STATE OF CALI- FORNIA; STATE OF MARY- LAND; STATE OF MAS- SUCHUSETTS; STATE OF NEW YORK; STATE OF ORE- GON Motion to intervene. Date of service: 10/30/2017. [10636592] [17-17168] (Purcell, Noah) [En- tered: 10/30/2017 03:15 PM] * * * * * 10/31/17 13 Added Plaintiffs/Appellees John Does 1 & 2 and Muslim Associa- tion of Hawaii, Inc.. [10638337] (HH) [Entered: 10/31/2017 02:17 PM] 10/31/17 14 Filed (ECF) Appellees State of Hawaii, Ismail Elshikh, John Does and Muslim Association of Hawaii, Inc. response opposing motion ([4] Motion (ECF Filing), [4] Motion (ECF Filing) motion to stay lower court action). Date of service: 10/31/2017. [10638619] [17-17168] (Katyal, 5 DOCKET DATE NUMBER PROCEEDINGS Neal) [Entered: 10/31/2017 03:24 PM] * * * * * 11/2/17 26 Submitted (ECF) Opening Brief for review. Submitted by Ap- pellants John F. Kelly, Rex W. Tillerson, Donald J. Trump, U.S. Department of State, USA and USDHS. Date of service: 11/02/2017. [10642025] [17-17168] (Swingle, Sharon) [Entered: 11/02/2017 04:10PM] 11/2/17 27 Submitted (ECF) excerpts of rec- ord. Submitted by Appellants John F. Kelly, Rex W. Tillerson, Donald J. Trump, U.S. Depart- ment of State, USA and USDHS. Date of service: 11/02/2017. [10642038] [17-17168] (Swingle, Sharon) [Entered: 11/02/2017 04:14 PM] 11/2/17 28 Filed clerk order: The opening brief [26] submitted by John F. Kelly; et al., is filed. Filer is or- dered to file 10 copies of the brief in paper format for delivery to the Court by 12pm Pacific time on Friday, 11/03/2017, accompanied by certification, attached to the end of each copy of the brief, that 6 DOCKET DATE NUMBER PROCEEDINGS the brief is identical to the ver- sion submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing appli- cation, not from PACER or Ap- pellate CM/ECF. The Court has reviewed the excerpts of record [27] submitted by John F. Kelly; et al. Filer is ordered to file 4 copies of the excerpts in paper format for delivery to the Court by 12pm Pacific time on Friday, 11/03/2017, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [10642056] (SML) [Entered: 11/02/2017 04:20PM] 11/2/17 29 Filed (ECF) Appellants John F. Kelly, Rex W. Tillerson, Donald J. Trump, U.S. Department of State, USA and USDHS reply to response (motion to stay lower court action). Date of service: 11/02/2017. [10642161] [17-17168] (Swingle, Sharon) [Entered: 11/02/2017 05:25 PM] * * * * * 11/7/17 38 Filed (ECF) Appellants John F. Kelly, Rex W. Tillerson, Donald J. 7 DOCKET DATE NUMBER PROCEEDINGS Trump, U.S. Department of State, USA and USDHS response opposing motion ([11] Motion (ECF Filing), [11] Motion (ECF Filing) motion to intervene). Date of service: 11/07/2017. [10647149] [17-17168] (Byron, H. Thomas) [Entered: 11/07/2017 07:03 PM] 11/13/17 39 Filed order (MICHAEL DALY HAWKINS, RONALD M. GOULD and RICHARD A. PAEZ) The Government’s motion for an emer- gency stay of the district court’s preliminary injunction pending hearing and resolution of the expedited appeal is granted in part and denied in part. The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” as set out below. Trump v. Int’l Refugee Assistance Pro- ject (“IRAP”), 137 S.