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CLOSED,STAYED

U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:17-cv-02921-TDC

Iranian Alliances Across Borders et al v. Trump et al Assigned to: Judge Theodore D. Chuang Case in other court: USCA, 17-02232 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/02/2017 Date Terminated: 08/31/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Iranian Alliances Across Borders

represented by Mark Henry Lynch Covington and Burling 850 St NW One CityCenter Washington, DC 20001 2026625544 Fax: 2026626291 Email: mlynch@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Lieb Nellis Americans United for Separation fo Church and State 1310 L St. NW Ste. 200 Washington, DC 20005 2024662324 Fax: 2024663353 Email: nellis@au.org TERMINATED: 08/17/2018 PRO HAC VICE

Eric Rothschild Americans United for Separation of Church and State 1310 L St. NW Ste. 210 Washington, DC 20005

2024663234 Fax: 2024663353 Email: rothschild@au.org TERMINATED: 08/17/2018 PRO HAC VICE
Johnathan James Smith Muslim Advocates PO Box 34440 Washington, DC 20043 2028972622 Fax: 2025081007 Email: johnathan@muslimadvocates.org TERMINATED: 02/01/2019 PRO HAC VICE
Karun Tilak Covington and Burling LLP One CityCenter 850 Tenth St. NW Washington, DC 20001 2026625083 Fax: 2027785083 Email: ktilak@cov.com TERMINATED: 09/09/2019 PRO HAC VICE
Kathryn Cahoy Covington and Burling LLP 333 Twin Dolphin Dr. Ste. 700 Redwood Shores, CA 94065 6506324735 Fax: 6506324800 Email: kcahoy@cov.com TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier Covington and Burling LLP 850 10th St Nw Washington, DC 20001 2026625435 Email: mmosier@cov.com TERMINATED: 12/15/2020 PRO HAC VICE

Plaintiff

ATTORNEY TO BE NOTICED
Nimra Azmi Muslim Advocates PO Box 34440 Washington, DC 20043 2025948713 Fax: 2025081007 Email: nimra@muslimadvocates.org TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Richard B Katskee Americans United for Separation of Church and State 1310 L Street NW Suite 200 Washington, DC 20005 (202) 466-3234 Fax: (202) 466-2587 Email: katskee@au.org ATTORNEY TO BE NOTICED
Sirine Shebaya National Immigration Project of the National Lawyers' G 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-656-4788 Email: sirine@nipnlg.org TERMINATED: 08/22/2019
Marianne F Kies Covington and Burling LLP One CityCenter 850 Tenth St NW Washington, DC 20001 2026625005 Fax: 2027785005 Email: mkies@cov.com ATTORNEY TO BE NOTICED

Jane Doe #1

represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
John W. Sorrenti Covington & Burling, LLP 850 10th Street Washington, DC 20001 202-662-5033 Fax: 202-778-5033 Email: jsorrenti@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Jose Arvelo Covington & Burling LLP 850 10th Street, NW Washington, DC 20001 2026625474 Fax: 2027785474 Email: jarvelo@cov.com TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe #2 TERMINATED: 03/11/2019

Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell Covington & Burling, LLP 1999 Avenue of the Stars Los Angeles, CA 90067 4243324768 Fax: 4243324749 Email: rvantassell@gmail.com TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
John W. Sorrenti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Jose Arvelo (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi

Plaintiff Jane Doe #3

(See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell (See above for address) TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
John W. Sorrenti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019

PRO HAC VICE
Jose Arvelo (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell (See above for address) TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies

Plaintiff
Jane Doe #4 TERMINATED: 11/02/2018

(See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
John W. Sorrenti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Jose Arvelo (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #5

Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell (See above for address) TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE

John W. Sorrenti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Jose Arvelo (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell (See above for address) TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee

Plaintiff John Doe #6

(See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
John W. Sorrenti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Jose Arvelo (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Karun Tilak (See above for address)

Plaintiff
Iranian Students' Foundation Iranian Alliances Across Borders Affiliate at the University of Maryland College Park

TERMINATED: 09/09/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell (See above for address) TERMINATED: 12/15/2020 ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lieb Nellis

(See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Eric Rothschild (See above for address) TERMINATED: 08/17/2018 PRO HAC VICE
Johnathan James Smith (See above for address) TERMINATED: 02/01/2019 PRO HAC VICE
Karun Tilak (See above for address) TERMINATED: 09/09/2019 PRO HAC VICE
Kathryn Cahoy (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W Mosier (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 12/15/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Richard B Katskee (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/22/2019
Marianne F Kies

(See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump in his official capacity as President of the United States
Defendant Elaine C. Duke in her official capacity as Acting Secretary of Homeland Security
Defendant Kevin K. McAleenan in his official capacity as Acting Commissioner of U.S. Customes and Border Protection

represented by Donald J. Trump President of the United States 1600 Pennsylvania Avenue, NW Washington, DC 20500 PRO SE
Daniel Stephen Garrett Schwei United States Department of Justice 20 Massachusetts Ave NW Room 6145 Washington, DC 20001 2023058693 Fax: 2026168470 Email: daniel.s.schwei@usdoj.gov TERMINATED: 12/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elaine C. Duke U.S. Department of Homeland Security 3801 Nebraska Avenue, NW Washington, DC 20016 PRO SE
Daniel Stephen Garrett Schwei (See above for address) TERMINATED: 12/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin K. McAleenan U.S. Customs and Border Protection 1300 Pennsylvania Avenue, NW Washington, DC 20229 PRO SE

Defendant James McCament in his official capacity as Acting Director of U.S. Citizenship and Immigration Services
Defendant Rex W. Tillerson in his official capacity as Secretary of State
Defendant Jefferson Beauregard Sessions, III in his official capacity as Attorney General of the United States

Daniel Stephen Garrett Schwei (See above for address) TERMINATED: 12/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James McCament U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, NW Washington, DC 20008 PRO SE
Daniel Stephen Garrett Schwei (See above for address) TERMINATED: 12/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Rex W. Tillerson U.S. Department of State 2201 C Street, NW Washington, DC 20037 PRO SE
Daniel Stephen Garrett Schwei (See above for address) TERMINATED: 12/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jefferson Beauregard Sessions, III U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 PRO SE
Daniel Stephen Garrett Schwei (See above for address) TERMINATED: 12/15/2020

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/02/2017 10/02/2017
10/02/2017
10/02/2017 10/03/2017 10/03/2017

#

Docket Text

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-6921812.), filed by Jane Doe #5, Jane Doe #2, John Doe #6, Jane Doe #1, Jane Doe #3, Iranian Alliances Across Borders, Jane Doe #4. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Attachment A)(Kies, Marianne) (Entered: 10/02/2017)

2 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders re 1 Complaint, Summons to Defendant Trump (Attachments: # 1 Supplement Summons to Defendant Duke, # 2 Supplement Summons to Defendant McAleenan, # 3 Supplement Summons to Defendant McCament, # 4 Supplement Summons to Defendant Tillerson, # 5 Supplement Summons to Defendant Sessions, # 6 Supplement Summons to U.S. Attorney Schenning)(Kies, Marianne) (Entered: 10/02/2017)

3 MOTION for Other Relief for Permission to Proceed Under Pseudonyma, and to Omit Individual Plaintiffs' Home Addresses from Caption by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders (Attachments: # 1 Text of Proposed Order, # 2 Supplement Memorandum ISO Motion, # 3 Affidavit Declaration of Sirine Shebaya)(Kies, Marianne) (Entered: 10/02/2017)

4 NOTICE of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya, Sirine) (Entered: 10/02/2017)

5 Supplemental to 1 Complaint, filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, University of Maryland College Park Chapter Complaint with Corrected Caption (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Attachment A)(Kies, Marianne) (Entered: 10/03/2017)

6 Supplemental to 3 MOTION for Other Relief for Permission to Proceed Under Pseudonyma, and to Omit Individual Plaintiffs' Home Addresses from Caption filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, University of Maryland College Park Chapter Motion with Corrected Caption (Attachments: # 1 Text of

10/03/2017 10/03/2017
10/04/2017 10/04/2017
10/04/2017
10/04/2017
10/05/2017 10/05/2017 10/05/2017

Proposed Order, # 2 Supplement Memorandum ISO Motion, # 3 Affidavit Declaration of Sirine Shebaya)(Kies, Marianne) (Entered: 10/03/2017)

7 Local Rule 103.3 Disclosure Statement by Iranian Alliances Across Borders (Shebaya, Sirine) (Entered: 10/03/2017)

8 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders Plaintiffs' Notice of Relatedness to IRAP v. Trump (No. 17-CV00361-TDC) Under L.R. 103.1(b)(i) (Kies, Marianne) (Entered: 10/03/2017)

9 Summons Issued 60 days as to Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump, U.S. Attorney and U.S. Attorney General(jf3s, Deputy Clerk) (Entered: 10/04/2017)

10 MOTION to Appear Pro Hac Vice for Eric Rothschild (Filing fee $100, receipt number 0416-6926023.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Katskee, Richard) (Entered: 10/04/2017)

11 MOTION to Appear Pro Hac Vice for Andrew L. Nellis (Filing fee $100, receipt number 0416-6926052.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Katskee, Richard) (Entered: 10/04/2017)

12 MOTION to Appear Pro Hac Vice for Johnathan J. Smith (Filing fee $100, receipt number 0416-6927207.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Shebaya, Sirine) (Entered: 10/04/2017)

Case Reassigned to Judge Theodore D. Chuang. Judge George Jarrod Hazel no longer assigned to the case. (ko, Deputy Clerk) (Entered: 10/05/2017)

CASE MANAGEMENT ORDER. Signed by Judge Theodore D.

13

Chuang on 10/5/2017. (jf3s, Deputy Clerk) (Entered: 10/05/2017)

14 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Eric Rothschild. Directing attorney Eric Rothschild to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.

10/05/2017
10/05/2017
10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/05/2017

Signed by Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered: 10/05/2017)
15 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Andrew Nellis. Directing attorney Andrew Nellis to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered: 10/05/2017)
16 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of Johnathan James Smith. Directing attorney Johnathan James Smith to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered: 10/05/2017)
17 NOTICE of Intent to file Motion by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders (Katskee, Richard) (Entered: 10/05/2017)
18 NOTICE of Appearance by Mark Henry Lynch on behalf of Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders (Lynch, Mark) (Entered: 10/05/2017)
19 MOTION to Appear Pro Hac Vice for Mark W. Mosier (Filing fee $100, receipt number 0416-6929948.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark) (Entered: 10/05/2017)
20 MOTION to Appear Pro Hac Vice for Jose Arvelo (Filing fee $100, receipt number 0416-6929965.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark) (Entered: 10/05/2017)
21 MOTION to Appear Pro Hac Vice for John W. Sorrenti (Filing fee $100, receipt number 0416-6929971.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark) (Entered: 10/05/2017)
22 MOTION to Appear Pro Hac Vice for Rebecca G. Van Tassell (Filing fee $100, receipt number 0416-6929980.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark) (Entered: 10/05/2017)

10/05/2017 10/05/2017 10/05/2017 10/06/2017
10/10/2017 10/11/2017 10/11/2017 10/11/2017

23 Case Management Conference held on 10/5/2017 before Judge Theodore D. Chuang.(FTR- S.Smith-2B.) (ss5s, Deputy Clerk) (Entered: 10/05/2017)

24 NOTICE of Appearance by Daniel Stephen Garrett Schwei on behalf of All Defendants (Schwei, Daniel) (Entered: 10/05/2017)

25 ORDER granting Plaintiffs leave to file the Proposed Motion for Preliminary Injunction; scheduling a Motion Hearing for October 17, 2017 at 9:30 a.m. Signed by Judge Theodore D. Chuang on 10/5/2017. (jf3s, Deputy Clerk) (Entered: 10/06/2017)

26 MOTION for Preliminary Injunction by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders (Attachments: # 1 Text of Proposed Order, # 2 Supplement Memorandum ISO Motion, # 3 Exhibit 1 (Kharrazi Decl.), # 4 Exhibit 2 (Doe #1 Decl.), # 5 Exhibit 3 (Doe #2 Decl.), # 6 Exhibit 4 (Doe #3 Decl.), # 7 Exhibit 5 (Doe #5 Decl.), # 8 Exhibit 6 (Doe #6 Decl.))(Lynch, Mark) (Entered: 10/06/2017)

NOTICE rescheduling the Hearing on the Motions for Preliminary

27

Injunction for October 16, 2017 at 2:00 p.m. at the United States

Courthouse at 6500 Cherrywood Lane in Greenbelt, Maryland.

(signed by Judge Theodore D. Chuang 10/10/2017). (tds, Deputy

Clerk) (Entered: 10/10/2017)

28 QC NOTICE: 19 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe #6, Jane Doe #3 needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 10/11/2017)

29 QC NOTICE: 20 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe #6, Jane Doe #3 needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 10/11/2017)

30 QC NOTICE: 21 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe #6, Jane Doe #3 needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 10/11/2017)

10/11/2017
10/11/2017 10/11/2017 10/11/2017 10/11/2017 10/12/2017 10/12/2017 10/13/2017

31 QC NOTICE: 22 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe #6, Jane Doe #3 needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 10/11/2017)

32 CORRECTED MOTION to Appear Pro Hac Vice for Jose Arvelo by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark) (Entered: 10/11/2017)

33 CORRECTED MOTION to Appear Pro Hac Vice for Mark W. Mosier by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark) (Entered: 10/11/2017)

34 CORRECTED MOTION to Appear Pro Hac Vice for John W. Sorrenti by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark) (Entered: 10/11/2017)

35 CORRECTED MOTION to Appear Pro Hac Vice for Rebecca G. Van Tassell by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark) (Entered: 10/11/2017)

RESPONSE in Opposition re 26 MOTION for Preliminary

36

Injunction filed by Elaine C. Duke, Kevin K. McAleenan, James

McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson,

Donald J. Trump.(Schwei, Daniel) (Entered: 10/12/2017)

37 AMENDED COMPLAINT against All Defendants, filed by Jane Doe #5, Jane Doe #2, John Doe #6, Jane Doe #1, Jane Doe #3, Iranian Alliances Across Borders, Jane Doe #4. (Attachments: # 1 Attachment A (Proclamation), # 2 Comparison Document)(Lynch, Mark) (Entered: 10/12/2017)

38 MOTION for Leave to File Two Additional Declarations in Support of Plaintiffs' Motion for a Preliminary Injunction re 26 MOTION for Preliminary Injunction by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders (Attachments: # 1 Proposed Order, # 2 Memorandum in Support of Motion, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Lynch, Mark) (Entered: 10/13/2017)

10/13/2017
10/13/2017
10/13/2017
10/13/2017
10/14/2017 10/16/2017 10/17/2017 10/17/2017 10/18/2017

39 PAPERLESS ORDER granting 32 Corrected Motion to Appear Pro Hac Vice on behalf of Jose Arvelo. Directing attorney Jose Arvelo to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

40 PAPERLESS ORDER granting 33 Corrected Motion to Appear Pro Hac Vice on behalf of Mark W Mosier. Directing attorney Mark W Mosier to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

41 PAPERLESS ORDER granting 34 Corrected Motion to Appear Pro Hac Vice on behalf of John W. Sorrenti. Directing attorney John W. Sorrenti to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

42 PAPERLESS ORDER granting 35 Corrected Motion to Appear Pro Hac Vice on behalf of Rebecca G Van Tassell. Directing attorney Rebecca G Van Tassell to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

43 REPLY to Response to Motion re 26 MOTION for Preliminary Injunction filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders.(Lynch, Mark) (Entered: 10/14/2017)

44 Preliminary Injunction Hearing held on 10/16/2017 before Judge Theodore D. Chuang.(Court Reporter: Lisa Bankins - 4C) (klss, Deputy Clerk) (Entered: 10/16/2017)

MEMORANDUM OPINION. Signed by Judge Theodore D.

46

Chuang on 10/17/2017. (kns, Deputy Clerk) (Entered: 10/18/2017)

47 ORDER granting in part and denying in part 26 Motion for Preliminary Injunction. Signed by Judge Theodore D. Chuang on 10/17/2017. (kns, Deputy Clerk) (Entered: 10/18/2017)

45 PAPERLESS ORDER granting 38 Motion for Leave to File Additional Declarations as to Additional Plaintiffs. See generally Fed. R. Civ. P. 15(a)(2) (instructing courts to "freely give leave

10/18/2017 10/18/2017
10/20/2017 10/20/2017 10/20/2017 10/20/2017 10/20/2017

when justice so requires"). Signed by Judge Theodore D. Chuang on 10/18/2017. (nr, Chambers) (Entered: 10/18/2017)
48 MOTION to Appear Pro Hac Vice for Karun Tilak (Filing fee $100, receipt number 0416-6950302.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark) (Entered: 10/18/2017)
49 PAPERLESS ORDER granting 48 Motion to Appear Pro Hac Vice on behalf of Karun Tilak. Directing attorney Karun Tilak to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-passwordreset. Signed by Clerk on 10/18/2017. (srd, Deputy Clerk) (Entered: 10/18/2017)
50 NOTICE OF APPEAL as to 47 Order on Motion for Preliminary
Injunction, 46 Memorandum Opinion by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump. (Schwei, Daniel) (Entered: 10/20/2017)
51 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 50 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(kns, Deputy Clerk) (Entered: 10/20/2017)
52 USCA Case Number 17-2232 for 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump. Case Manager - RJ Warren.(kns, Deputy Clerk) (Entered: 10/20/2017)
53 ORDER of USCA consolidating Case No. 17-2231(L) with Case No. 17-2232 and Case No. 17-2233 as to 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump. (kns, Deputy Clerk) (Entered: 10/20/2017)
54 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders re 43 Reply to Response to Motion, Notice of Filing of Joint Record (Attachments: # 1 Exhibit Joint Record 1-10, # 2 Exhibit Joint Record 11-35, # 3 Exhibit Joint Record 36-42, # 4 Exhibit Joint

12/05/2017 12/05/2017
12/06/2017 12/07/2017 12/22/2017

Record 43-46, # 5 Exhibit Joint Record 47-50, # 6 Exhibit Joint Record 51-54, # 7 Exhibit Joint Record 55-59, # 8 Exhibit Joint Record 60-61, # 9 Exhibit Joint Record 62-65, # 10 Exhibit Joint Record 66-184, # 11 Exhibit Joint Record 185-303, # 12 Exhibit Joint Record 304-420, # 13 Exhibit Joint Record 421-764, # 14 Exhibit Joint Record 765-776)(Kies, Marianne) (Entered: 10/20/2017)
55 MOTION to Appear Pro Hac Vice for Kathryn Cahoy (Filing fee $100, receipt number 0416-7036257.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation(Lynch, Mark) (Entered: 12/05/2017)
56 SUMMONS Returned Executed by Jane Doe #5, Jane Doe #2, John Doe #6, Iranian Students' Foundation, Jane Doe #1, Jane Doe #3, Iranian Alliances Across Borders, Jane Doe #4. Elaine C. Duke served on 10/4/2017, answer due 12/4/2017; Kevin K. McAleenan served on 10/4/2017, answer due 12/4/2017; James McCament served on 10/4/2017, answer due 12/4/2017; Jefferson Beauregard Sessions, III served on 10/4/2017, answer due 12/4/2017; Rex W. Tillerson served on 10/4/2017, answer due 12/4/2017; Donald J. Trump served on 10/4/2017, answer due 12/4/2017. (Attachments: # 1 Supplement Suppl. Service as to Acting US Attorney (D. Md.))(Kies, Marianne) (Entered: 12/05/2017)
57 PAPERLESS ORDER granting 55 Motion to Appear Pro Hac Vice on behalf of Kathryn Cahoy. Directing attorney Kathryn Cahoy to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/6/2017. (srd, Deputy Clerk) (Entered: 12/06/2017)
58 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation of Intent to File Motion for Entry of Scheduling Order (Kies, Marianne) (Entered: 12/07/2017)
59 PAPERLESS NOTICE that a telephone CASE MANAGEMENT CONFERENCE to discuss TDC-17-2969 ECF No. 46 and TDC17-2921 ECF No. 58, Notices of Intent to File Motion for Entry of a Scheduling Order, is scheduled for January 5, 2018 at 2:30 p.m. Instructions for the call will be emailed to the parties at a later date. (gk2s, Chambers) (Entered: 12/22/2017)

01/05/2018 01/09/2018 01/12/2018 01/19/2018
02/02/2018 02/02/2018
02/09/2018

60 Case Management Conference held on 1/5/2018 before Judge Theodore D. Chuang.(FTR-KLS-2B.) (klss, Deputy Clerk) (Entered: 01/05/2018)

61 POST CASE MANAGEMENT CONFERENCE ORDER. Signed by Judge Theodore D. Chuang on 1/9/2018. (aos, Deputy Clerk) (Entered: 01/10/2018)

62 PAPERLESS ORDER granting, in the absence of any objection from the Government, 3 Motion for Permission to Proceed Under Pseudonym, and to Omit Individual Plaintiffs' Home Addresses from Caption. Signed by Judge Theodore D. Chuang on 1/12/2018. (gk2s, Chambers) (Entered: 01/12/2018)

MOTION to Stay Proceedings Pending Resolution of Preliminary-

63

Injunction Appeals by Elaine C. Duke, Kevin K. McAleenan,

James McCament, Jefferson Beauregard Sessions, III, Rex W.

Tillerson, Donald J. Trump (Attachments: # 1 Memorandum

in Support, # 2 Exhibit Meet and Confer Correspondence, # 3

Text of Proposed Order)(Schwei, Daniel) (Entered: 01/19/2018)

64 Cross MOTION Entry of Scheduling Order by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 02/02/2018)

65 Memorandum re 64 Cross MOTION Entry of Scheduling Order ,

63 MOTION to Stay Proceedings Pending Resolution of Preliminary-Injunction Appeals filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation. (Attachments: # 1 Declaration of Sirine Shebaya, # 2 Exhibit A)(Kies, Marianne) (Entered: 02/02/2018)

66 RESPONSE in Opposition re 64 Cross MOTION Entry of

Scheduling Order , REPLY to Response to Motion re 63 MOTION to Stay Proceedings Pending Resolution of PreliminaryInjunction Appeals filed by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W.

02/16/2018 04/24/2018 04/24/2018
08/15/2018 08/16/2018 08/17/2018 08/17/2018 08/29/2018

Tillerson, Donald J. Trump.(Schwei, Daniel) (Entered: 02/09/2018)

67 REPLY to Response to Motion re 64 Cross MOTION Entry of Scheduling Order filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation. (Attachments: # 1 Decl. of M. Mosier ISO Reply ISO Motion for Scheduling Order, # 2 Ex. A to Mosier Decl.)(Kies, Marianne) (Entered: 02/16/2018)

MEMORANDUM OPINION. Signed by Judge Theodore D.

68

Chuang on 4/24/2018. (kns, Deputy Clerk) (Entered: 04/24/2018)

69 ORDER granting Defendants' Motion to Stay Proceedings Pending Resolution of Preliminary-Injunction Appeals, TDC 17-2921 ECF

No. 63 , TDC 17-2969 ECF No. 51; staying TDC 17-0361, TDC 17-2921 and 17-2969 and denying without prejudice Plaintiffs' Motion for Entry of a Scheduling Order, TDC 17-2921 ECF No. 64 , TDC 17-2969 ECF 52. Signed by Judge Theodore D. Chuang on 4/24/2018. (kns, Deputy Clerk) (Entered: 04/24/2018)

70 MOTION to Withdraw as Attorney for Eric Rothschild by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Text of Proposed Order)(Katskee, Richard) (Entered: 08/15/2018)

71 MOTION to Withdraw as Attorney by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Text of Proposed Order)(Nellis, Andrew) (Entered: 08/16/2018)

72 PAPERLESS ORDER granting 70 Motion to Withdraw as Attorney. Attorney Eric Rothschild terminated. Signed by Judge Theodore D. Chuang on 8/17/2018. (nrs, Chambers) (Entered: 08/17/2018)

73 PAPERLESS ORDER granting 71 Motion to Withdraw as Attorney. Attorney Andrew Lieb Nellis terminated. Signed by Judge Theodore D. Chuang on 8/17/2018. (nrs, Chambers) (Entered: 08/17/2018)

74 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) (Entered: 08/29/2018)

08/29/2018 10/12/2018
11/02/2018 11/02/2018
11/05/2018 11/06/2018 11/07/2018 12/03/2018

75 NOTICE of Change of Address by Johnathan James Smith (Smith, Johnathan) (Entered: 08/29/2018)
76 MOTION for Leave to File Amended Complaints and for Entry of a Briefing Schedule by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Exhibit IAAB Proposed Second Amended Complaint, # 2 Exhibit Zakzok Proposed Amended Complaint, # 3 Exhibit IAAB Proposed Second Amended Complaint Redline, # 4 Exhibit Zakzok Proposed Amended Complaint Redline)(Kies, Marianne) (Entered: 10/12/2018)
77 ORDER granting 76 Joint Motion for Leave to File Amended Complaints and for Entry of a Briefing Schedule. Signed by Judge Theodore D. Chuang on 11/2/2018. (jf3s, Deputy Clerk) (Entered: 11/05/2018)
78 SECOND AMENDED COMPLAINT for Declaratory and Injunctive Relief against Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump, filed by Iranian Students' Foundation, Iranian Alliances Across Borders. (Attachments: # 1 Redline Second Amended Complaint)(jf3s, Deputy Clerk) (Entered: 11/05/2018)
79 Consent MOTION for Extension of Time to File Motion to Dismiss by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump(Schwei, Daniel) (Entered: 11/05/2018)
80 PAPERLESS ORDER granting 79 Motion for Extension of Time to File Document. The Government's Motion to Dismiss is now due November 7, 2018. Signed by Judge Theodore D. Chuang on 11/6/2018. (sl5s, Chambers) (Entered: 11/06/2018)
81 MOTION to Dismiss for Failure to State a Claim by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump (Attachments: # 1 Memorandum in Support)(Schwei, Daniel) (Entered: 11/07/2018)
82 RESPONSE in Opposition re 81 MOTION to Dismiss for Failure to State a Claim filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation.(Kies, Marianne) (Entered: 12/03/2018)

12/21/2018 01/31/2019
02/01/2019 02/01/2019 02/12/2019
02/27/2019 03/11/2019 04/22/2019 05/02/2019

REPLY to Response to Motion re 81 MOTION to Dismiss for

83

Failure to State a Claim filed by Elaine C. Duke, Kevin K.

McAleenan, James McCament, Jefferson Beauregard Sessions, III,

Rex W. Tillerson, Donald J. Trump.(Schwei, Daniel) (Entered:

12/21/2018)

84 PAPERLESS NOTICE that a HEARING on 81 Motion to Dismiss is scheduled for February 12, 2019 at 9:00 a.m. before Judge Theodore D. Chuang at the United States Courthouse located at 6500 Cherrywood Lane in Greenbelt, Maryland. The specific courtroom for the motions hearing will be available the week of the proceeding on the Court's website. (sl5s, Chambers) (Entered: 01/31/2019)

85 MOTION to Withdraw as Attorney by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Text of Proposed Order)(Smith, Johnathan) (Entered: 02/01/2019)

86 PAPERLESS ORDER granting 85 Motion to Withdraw as Attorney. Attorney Johnathan James Smith terminated. Signed by Judge Theodore D. Chuang on 2/1/2019. (nrs, Chambers) (Entered: 02/01/2019)

87 Motion Hearing held on 2/12/2019 re 81 MOTION to Dismiss for Failure to State a Claim filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump before Judge Theodore D. Chuang. Court took the matter under advisement and will issue a ruling at a later date.(Court Reporter: Lisa Bankins - 2B) (klss, Deputy Clerk) (Entered: 02/12/2019)

88 NOTICE of Voluntary Dismissal by Jane Doe #2 (Kies, Marianne) (Entered: 02/27/2019)

89 MARGINAL ORDER granting 88 NOTICE of Voluntary Dismissal by Jane Doe #2. Signed by Judge Theodore D. Chuang on 3/11/2019. (jf3s, Deputy Clerk) (Entered: 03/12/2019)

90 NOTICE of Change of Address by Marianne F Kies (Kies, Marianne) (Entered: 04/22/2019)

MEMORANDUM OPINION. Signed by Judge Theodore D.

91

Chuang on 5/2/2019. (jf3s, Deputy Clerk) (Entered: 05/03/2019)

05/02/2019 05/17/2019 05/20/2019 05/31/2019 05/31/2019 06/03/2019
06/18/2019

ORDER granting in part and denying in part 81 Motion to

92

Dismiss; granting Plaintiff 21 days to file an Amended Complaint.

Signed by Judge Theodore D. Chuang on 5/2/2019. (jf3s, Deputy

Clerk) (Entered: 05/03/2019)

93 NOTICE by Jane Doe #1, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation Notice Regarding Amendment of Complaints and Request for Scheduling Order (Shebaya, Sirine) (Entered: 05/17/2019)

94 PAPERLESS ORDER. Defendants shall FILE an Answer to Plaintiffs' Second Amended Complaint within 14 days of the filing of 93 Plaintiffs' Notice. Signed by Judge Theodore D. Chuang on 5/20/19. (sl5s, Chambers) (Entered: 05/20/2019)

95 NOTICE by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump of Intent to File Motion Requesting Interlocutory Appeal of Court's Order of May 2, 2019 Pursuant to 28 USC 1292(b), and a Stay of Discovery Pending Resolution of 1292(b) Proceedings (Schwei, Daniel) (Entered: 05/31/2019)

96 ANSWER to 78 Amended Complaint, by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump.(Schwei, Daniel) (Entered: 05/31/2019)

97 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE to discuss 95 Notice of Intent to File a Motion is scheduled for June 18, 2019 at 10:00 a.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 06181000 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. (sl5s, Chambers) (Entered: 06/03/2019)

98 Case Management Conference held on 6/18/2019 before Judge Theodore D. Chuang.(FTR-2B.) (klss, Deputy Clerk) (Entered: 06/18/2019)

06/18/2019 06/20/2019 07/03/2019 07/12/2019 07/12/2019 07/23/2019

99 ORDER granting the Government leave to file the proposed Motion for Leave to File an Interlocutory Appeal and to Stay; the Motion will be deemed timely if filed by June 20, 2019. Signed by Judge Theodore D. Chuang on 6/18/2019. (jf3s, Deputy Clerk) (Entered: 06/19/2019)
100 MOTION for Leave to Appeal Pursuant to 28 USC 1292(b),
MOTION to Stay re 91 Memorandum Opinion, 92 Order on Motion to Dismiss for Failure to State a Claim by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Schwei, Daniel) (Entered: 06/20/2019)
101 RESPONSE in Opposition re 100 MOTION for Leave to Appeal
Pursuant to 28 USC 1292(b) MOTION to Stay re 91
Memorandum Opinion, 92 Order on Motion to Dismiss for Failure to State a Claim filed by Jane Doe #1, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation.(Herzog, Steven) (Entered: 07/03/2019)
102 REPLY to Response to Motion re 100 MOTION for Leave to
Appeal Pursuant to 28 USC 1292(b) MOTION to Stay re 91
Memorandum Opinion, 92 Order on Motion to Dismiss for Failure to State a Claim filed by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump.(Schwei, Daniel) (Entered: 07/12/2019)
103 NOTICE by Jane Doe #1, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation / Plaintiffs' Notice of Supplemental Authority (Attachments: # 1 Supplemental Authority)(Herzog, Steven) (Entered: 07/12/2019)
104 NOTICE by Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J. Trump re 100 MOTION for Leave to Appeal Pursuant
to 28 USC 1292(b) MOTION to Stay re 91 Memorandum

Opinion, 92 Order on Motion to Dismiss for Failure to State a Claim of Supplemental Authority (Attachments: # 1 Exhibit DC Circuit Order in In re Trump)(Schwei, Daniel) (Entered: 07/23/2019)

08/16/2019

105 MOTION to Withdraw as Attorney by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation (Attachments: # 1 Text of Proposed Order)(Shebaya, Sirine) (Entered: 08/16/2019)

08/20/2019 106

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/19/2019. (jf3s, Deputy Clerk) (Entered: 08/20/2019)

08/20/2019 107

ORDER granting in part and denying in part 100 Combined Motion for Certification of this Court's May 2, 2019 Memorandum Opinion and Order for Interlocutory Appeal and for Stay of Discovery. Signed by Judge Theodore D. Chuang on 8/19/2019. (jf3s, Deputy Clerk) (Entered: 08/20/2019)

08/22/2019

108 PAPERLESS ORDER granting 105 Motion to Withdraw as Attorney. Attorney Sirine Shebaya terminated. Signed by Judge Theodore D. Chuang on 8/22/19. (nrs, Chambers) (Entered: 08/22/2019)

08/23/2019

109 MOTION to Appear Pro Hac Vice for Nimra H. Azmi (Filing fee $100, receipt number 0416-8195572.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation(Katskee, Richard) (Entered: 08/23/2019)

08/26/2019

110 PAPERLESS ORDER granting 109 Motion to Appear Pro Hac Vice on behalf of Nimra Azmi. Directing attorney Nimra Azmi to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 8/26/2019. (srd, Deputy Clerk) (Entered: 08/26/2019)

09/06/2019

111 MOTION to Withdraw as Attorney for Karun Tilak by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders, Iranian Students' Foundation(Kies, Marianne) (Entered: 09/06/2019)

09/09/2019

112 PAPERLESS ORDER granting 111 Motion to Withdraw as Attorney. Attorney Karun Tilak terminated. Signed by Judge

09/11/2019 06/08/2020
07/23/2020 08/21/2020 08/31/2020 08/31/2020

Theodore D. Chuang on 9/9/19. (nrs, Chambers) (Entered: 09/09/2019)
Case Stayed per Order of the USCA for the Fourth Circuit (kns, Deputy Clerk) (Entered: 03/03/2020)
113 JUDGMENT of USCA reversing the judgment of the district court and remanding the case to the district court for further proceedings consistent with the court's decision as to 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump
(Attachments: # 1 Notice of judgment, # 2 Published opinion)(nus, Deputy Clerk) (Entered: 06/08/2020)
114 MANDATE of USCA stayed pending ruling on petition for rehearing or rehearing en banc as to 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump (nus, Deputy Clerk) (Entered: 08/24/2020)
115 ORDER of USCA denying Motion for rehearing en banc as to 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump (nus, Deputy Clerk) (Entered: 08/24/2020)
116 MANDATE of USCA issued as to 50 Notice of Appeal filed by Jefferson Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James McCament, Donald J. Trump (nus, Deputy Clerk) (Entered: 08/31/2020)
117 ORDER that in accordance with the instructions of the United States Court of Appeals for the Fourth Circuit, it is hereby ORDERED this cases is DISMISSED WITH PREJUDICE. Signed by Judge Theodore D. Chuang on 8/31/2020. (heps, Deputy Clerk) (Entered: 08/31/2020)

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 Case 8:17-cv-02921-GJH Document 1 Filed 10/02/17 Page 1 of 34

Case 8:17-cv-02921-GJH Document 1 Filed 10/02/17 Page 2 of 34
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW Washington, DC 20037 JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001
Defendants.
INTRODUCTION 1. Plaintiffs bring this case to challenge President Donald J. Trump’s latest attempt to implement an unlawful Muslim ban, this time through the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (“the Proclamation”) issued on September 24, 2017 (Attachment A to this Complaint). Plaintiffs are United States citizens and Lawful Permanent Residents with bona fide relationships with current or potential applicants for immigrant and non-immigrant visas to the United States from the countries affected by the Proclamation, as well as an organization of similarly situated individuals. 2. President Trump has been consistent and clear about his intention to restrict Muslims from entering the United States. Beginning on December 7, 2015, he called for “a total and complete shutdown of Muslims entering the United States.” Throughout the remainder of his campaign, he pledged to follow through on this promise in terms that explicitly discriminated against Muslims.
2

Case 8:17-cv-02921-GJH Document 1 Filed 10/02/17 Page 3 of 34
3. In the first days of his presidency, President Trump sought to fulfill this campaign promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “First Executive Order”). On its face, the First Executive Order restricted travel to the United States for 90 days for nationals of seven countries, all Muslim-majority countries. It also put in effect a world-wide ban on refugees, with certain exceptions for those of minority religious faiths. The First Executive Order spurred significant litigation in several district courts and was enjoined on a national basis on February 3, 2017, on a finding that the plaintiffs showed they were likely to succeed on the merits of their constitutional challenges, or, in the alternative, that “they have established at least serious questions going to the merits of their claims and the balance of equities tips sharply in their favor.” Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017).
4. On March 6, 2017, President Trump rescinded and replaced the First Executive Order with Executive Order 13780 (“The Second Executive Order”). The Second Executive Order had the same purpose and effect as the first: Both were designed to, and did, prevent Muslims from entering the United States. The major provisions of the two orders were nearly identical. Both included language reflecting bigotry, implicitly associating Muslims with violence and terrorism. The Second Executive Order suffered from the same fundamental constitutional and statutory defects as the first, so it too was blocked by the courts. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc). The Supreme Court narrowed these two preliminary injunctions to enjoin the application of the relevant provisions with respect to visitors and immigrants to the United States only if they have a bona fide relationship with a U.S. individual or entity. Trump v. Int’l Refugee Assistance Project, 137 S.Ct. 2080 (2017).
3

Case 8:17-cv-02921-GJH Document 1 Filed 10/02/17 Page 4 of 34
5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.
6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.
7. The Proclamation penalizes the nationals of the targeted Muslim-majority countries without adequate determinations or findings as to a detrimental impact on the interests of the United States of any of those particular nationals, and it harms U.S. citizens and U.S. Lawful Permanent Residents with family or business ties to these countries—particularly those with bona fide relationships with current or potential applicants for immigrant- and nonimmigrant visas to the United States from the countries affected by the Proclamation—as well as organizations of similarly situated individuals.
8. The Proclamation, like the First and Second Executive Orders that preceded it, violates the Immigration and Nationality Act’s prohibition against discrimination in the issuance of immigrant visas, 8 U.S.C. § 1152(a)(1), and exceeds the President’s authority under the
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Immigration and Nationality Act’s provisions delineating classes of aliens ineligible for visas or

admission and the nature of Presidential suspension that is authorized, 8 U.S.C. § 1182.

9. The Proclamation, like the First and Second Executive Orders that preceded it,

violates fundamental, dearly held constitutional protections. It violates the guarantees that the

government will not establish, favor, discriminate against, denigrate, or condemn any religion;

the guarantee of freedom of speech; and the guarantee of equal protection of the law. It betrays

our nation’s most central principles and forsakes our common heritage as a country founded in

part on the principle of freedom from religious persecution.

10. As a result of the Proclamation, the individual Plaintiffs are cut off from their

family members, unable to have their relatives visit under tourist visas or join them as

immigrants to the United States. The Proclamation violates the Immigration and Nationality

Act, constitutes an exercise of authority in excess of the Act, and violates the Establishment

Clause and due process and equal protection guarantees of the Fifth Amendment. Plaintiff

Iranian Alliances Across Borders (“IAAB”) suffers further harms to their constitutionally-

protected right to engage in the free flow of ideas under the First Amendment.

A.

The Plaintiffs

PARTIES

11. IAAB is a national organization, founded in 2003 by Iranian-American university

students. Its mission is to strengthen the Iranian diaspora community through leadership and

educational programming that encourages collaboration and solidarity across borders and

between communities. IAAB organizes camps for youths, regional summits, Persian-language

educational events, international conferences on the Iranian diaspora, and other activities, and in

so doing is in the practice of inviting prominent scholars and other participants from outside the

country, including from Iran, to the United States for its events. IAAB affiliates through its 5

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Campus Action Network with a national network of affiliated Iranian-American student groups and representatives, including groups at the University of Maryland College Park, one of the biggest and most active Iranian-American student groups in the nation, and a group at the University of Maryland in Baltimore.
12. Doe Plaintiff #1 is a United States citizen of Iranian origin who fled religious persecution in Iran. From 2015 to 2016, she lived in Bethesda, Maryland, and was looking forward to building her life there. She met her now-husband in 2015, and they married in 2016. Because her husband does not have permission to reside in the United States, she relocated to the United Arab Emirates on a temporary basis to live with him while his visa application to the United States was being processed. She submitted an I-130 form for her husband in June 2016, and the request was approved on September 20, 2017. She fears that due to the Proclamation, his visa will now be suspended and they will be indefinitely banned from building their life together in Maryland as they had hoped. Their residency status in the United Arab Emirates is uncertain; they can never receive permanent residency and must continue to reapply for temporary residency every three years. They would face persecution if forced to return to Iran.
13. Doe Plaintiff #2 is a US citizen of Iranian origin. She was born in the United States and has lived in Maryland ever since. She graduated from the University of Maryland in College Park in 2017 and continues to live and work in Maryland. In February 2017, she applied for a K-visa for her fiancé, who is Iranian. He completed his interview at the U.S. Embassy in Ankara, Turkey on August 4, 2017, and she is awaiting a final response on his application. If the visa is not granted by October 18, 2017, Doe Plaintiff #2 will be separated indefinitely from her fiancé, and will be forced to choose between the only home she has ever known and the love of her life.
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14. Doe Plaintiff #3 is a U.S. citizen of Iranian origin. She became a US citizen in 1994. She has lived in Montgomery County, Maryland for many years and has been a specialeducation teacher for Montgomery County Public Schools since 2006. She has a pending I-130 application for her younger brother, who is the only remaining family member in Iran. Her mother, father, and two brothers are all in the United States. If the Proclamation goes into full effect on October 18, processing of her petition will be suspended and she will be indefinitely banned from reuniting here with her brother.
15. Doe Plaintiff #4 is a US citizen of Iranian origin. She has lived in the United States since 1978 and is a resident of Montgomery County, Maryland. She has a pending I-130 application on behalf of her sister, who is 72 years old and remains in Iran. If the Proclamation goes into full effect on October 18, the processing of her application will be suspended and she will be indefinitely banned from reuniting here with her sister.
16. Doe Plaintiff #5 is an elderly Iranian national and a Lawful Permanent Resident of the United States, who resides in Montgomery County, Maryland. She has been in the United States since 2010 and lives with her husband and her U.S. citizen son. She applied to sponsor her second son shortly after she became a resident, and her I-130 application was approved in November 2010. In December 2016, her son received a letter scheduling his interview at the U.S. Embassy in Ankara, Turkey for February 5, 2017. Because of the First Executive Order, that interview was canceled. After the First Executive Order was enjoined by the courts, his interview was rescheduled for March 20, 2017. He completed the interview and is now awaiting final approval to come to the United States. Doe Plaintiff #5 is in desperate need of her son’s presence, as she is wheelchair-bound. Her husband, who is 90 years old, also has significant health problems. Her U.S. citizen son is their only caretaker, and they all need the assistance of
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her other son. If the Proclamation goes into full effect on October 18, the processing of his

application will be suspended and Doe Plaintiff #5 will be indefinitely banned from reuniting

with her son.

17. Doe Plaintiff #6 is an Iranian national and a Lawful Permanent Resident of the

United States, who resides in Maryland. He has lived in the United States for five years and

works as an engineer. His wife, who also resides in Maryland, is Iranian and is employed at the

National Institutes of Health as a biochemistry researcher. She has a Ph.D. in Chemistry from

Johns Hopkins University. They have together made their home in Maryland. His mother-in-

law and sister-in-law have each applied for business/tourist (B1/B2) visitor visas in order to

come visit them, and both had their interviews at the U.S. Embassy in Dubai on January 5, 2017.

If their visitor visas are not issued before the Proclamation goes into full effect on October 18,

they will be indefinitely banned from coming to the United States to visit their son-in-law and

brother-in-law, as well as their daughter and sister, and they will be separated indefinitely from

some of their closest and dearest family members.

B.

The Defendants

18. Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity. President Trump issued the Proclamation that is the subject of this lawsuit.

19. Defendant Elaine C. Duke is the Acting Secretary of Homeland Security and is

sued in her official capacity. The Department of Homeland Security (“DHS”) is an executive

department of the United States government, headquartered in Washington, DC. DHS was

involved in preparing a report that was cited in the Proclamation and is assigned several

responsibilities regarding implementation and enforcement of the Proclamation. Acting

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Secretary Duke is responsible for DHS’s administration of the Immigration and Nationality Act (“INA”) and its implementation and enforcement of the Proclamation.
20. Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and Border Protection and is sued in his official capacity. The U.S. Customs and Border Protection (“CBP”) is an administrative agency within DHS, headquartered in Washington, DC. The Proclamation assigns CBP various responsibilities regarding implementation and enforcement. Acting Commissioner McAleenan is responsible for CBP’s implementation of the INA and its implementation and enforcement of the Proclamation.
21. Defendant James McCament is the Acting Director of U.S. Citizenship and Immigration Services and is sued in his official capacity. The U.S. Citizenship and Immigration Services (“USCIS”) is an administrative agency within DHS, headquartered in Washington, DC. USCIS oversees lawful immigration to the United States. Acting Director McCament is responsible for USCIS’s implementation of the INA and its implementation and enforcement of the Proclamation.
22. Defendant Rex W. Tillerson is the Secretary of State and is sued in his official capacity. The Department of State is an executive department of the United States, headquartered in Washington DC. The State Department consulted on the report prepared by DHS and is responsible for issuing visas and implementing the Proclamation. The Proclamation assigns the State Department various responsibilities regarding implementation and enforcement. Secretary Tillerson oversees the State Department’s activities with respect to the INA and its implementation and enforcement of the Proclamation.
23. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is sued in his official capacity. The Department of Justice (“DOJ”) is an
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executive department of the United States, headquartered in Washington, DC. The Proclamation assigns the Department of Justice various responsibilities regarding implementation and enforcement. Attorney General Sessions oversees the DOJ’s activities with respect to the INA and the implementation and enforcement of the Proclamation.
JURISDICTION AND VENUE 24. The Court has federal question jurisdiction under 28 U.S.C. § 1331. 25. The Court has authority to award declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. 26. Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(C).
STATEMENT OF FACTS A. President Trump’s Express Intent to Target Muslims for Prohibition
Against, or Restrictions on, Entry into the United States 27. President Donald Trump made his intent to impose a “Muslim ban” against those entering the United States a central tenet of his campaign for President and since assuming office, he has worked to give effect to this Muslim ban through various measures, culminating in the Proclamation. 28. In a series of interviews in the fall of 2015, Mr. Trump stated that he would require Muslims in the United States to register with the government, and he insisted that the country had “absolutely no choice” but to shut down mosques. 29. On December 7, 2015, after the attack in San Bernardino, California, Mr. Trump released a written statement on his campaign website calling for a “total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is
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going on.”2 This original statement invoked invidious stereotypes of Muslims, suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women. He suggested that barring immigration by Muslims was necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”3
30. When asked that same day how customs officials would apply such a ban, Candidate Trump said, “[T]hey would say, are you Muslim?” In response, a reporter asked, “[I]f they say yes, they would not be allowed in the country?” Candidate Trump responded, “That’s correct.”4
31. This intended Muslim ban became a central talking point of the Trump campaign, promoted by Mr. Trump and his surrogates at campaign events across the country.
32. On January 14, 2016, when asked whether he had rethought his “comments about banning Muslims from entering the country,” Mr. Trump responded “No.”5
2 Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015), https://web.archive.org/web/20170508151734/www.donaldjtrump.com/press-releases/donald-j.trump-statement-on-preventing-muslim-immigration. 3 Id. 4 Jenna Johnson & Sean Sullivan, Donald Trump explains how his ban on Muslims entering the U.S. would work, WASH. POST (Dec. 8, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/08/donald-trump-explains-how-his-ban-on-muslims-entering-the-u-s-wouldwork/?utm_term=.c0bda2a45d8b. 5 Gerhard Peters & John T. Wooley, Presidential Candidate Debates: Republican Candidates Debate in North Charleston, South Carolina, The American Presidency Project (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395.
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33. On March 9, 2016, Mr. Trump stated in a televised interview that “I think Islam hates us . . . and we can’t allow people coming into this country who have this hatred of the United States.”6
34. On June 13, 2016, after an attack on a nightclub in Orlando, Florida, Mr. Trump gave a speech in which he said, “I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.” He went on to clarify that he blamed Islam, writ large, for such attacks: “We cannot continue to allow thousands and thousands of people to pour into our country, many of whom have the same thought process as this savage killer.”7 He blamed “Muslim communities” for failing to “turn in the people who they know are bad—and they do know where they are.”8
35. On July 17, 2016, Mr. Trump was asked to respond to criticism by his running mate (now the Vice President) that a ban on Muslims entering the country would be unconstitutional. He responded, “So you call it territories, okay? We’re gonna do territories.”9
36. On July 24, 2016, Mr. Trump was asked if this statement constituted a “rollback” from his intended Muslim ban. His answer was “I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were
6 Exclusive Interview by Anderson Cooper with Donald Trump, Presidential Candidate, in Miami, Fl. (Mar. 9, 2016), http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. 7 Transcript: Donald Trump’s national security speech, Politico (Jun. 13, 2016, 3:06 PM), http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273. 8 Id. 9 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (Jul. 17, 2016), http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/.
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so upset when I used the word Muslim. Oh, you can’t use the word Muslim. . . . And I’m okay with that, because I’m talking territory instead of Muslim.”10
37. On October 9, 2016, during a televised presidential debate, Mr. Trump stated that “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.”11
38. These remarks signal Mr. Trump’s search for a pretext to disguise blatant animus toward Muslims and presage how his administration would carry out his unconstitutional measure by dressing it up as a bona fide national security measure.
B. The First Executive Order 39. On January 27, 2017, a week after assuming office, President Trump signed Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”12 At the time of signing, his original December 7, 2015, statement calling for a “total shutdown” of Muslim entrants remained live on his campaign website. 40. At the signing ceremony, President Trump read the order’s title, and stated, “We all know what that means.”13 The next day, President Trump’s advisor and vice chair of his transition team, Rudy Giuliani, stated that the First Executive Order was the result of an
10 Interview by Chuck Todd with Donald Trump, Presidential Candidate on Meet the Press (Jul. 24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016n615706. 11 Gerhard Peters & John T. Wooley, Presidential Debate at Washington University in St. Louis, Missouri, The American Presidency Project (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038. 12 82 Fed. Reg. 8977 (Jan. 27, 2017). 13 Matt Shuham, Trump Signs Executive Order Laying Out ‘Extreme Vetting,’ Talking Points Memo (Jan. 27, 2017, 4:56 PM), http://talkingpointsmemo.com/livewire/trump-signs-vettingexecutive-order.
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instruction by President Trump to him to find a way to implement a “Muslim ban” “legally.”14 Three days later, on January 30, President Trump referred on his Twitter account to the First Executive Order as “the ban.”15
41. The First Executive Order banned entry of nationals of seven Muslim-majority countries16 for 90 days, suspended the entire U.S. Refugee Admissions Program for 120 days, established a policy of prioritizing certain religious denominations over others upon resuming the Refugee program, and indefinitely barred entry of all Syrian refugees.17
42. In its “Purpose” section, the First Executive Order explicitly relied on negative stereotypes about Islam, stating that the United States should not admit individuals who “place violent ideologies over American law” or engage in acts of violence “including ‘honor killings,’ [or] other forms of violence against women.”18
43. An overt preference for Christian refugees was one of the objectives of the First Executive Order. Section 5(b) directed the Secretary of State, in consultation with the Secretary of Homeland Security, to give priority to refugee claims made by persons fleeing “religious-
14 See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ The Hill (Jan. 29, 2017, 8:48 AM), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally. 15 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017 5:31AM), https://twitter.com/realdonaldtrump/status/826060143825666051?lang=en (“If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week. A lot of bad ‘dudes’ out there!”). 16 Some of the targeted countries have far more than simple Muslim majority. In Iran and Yemen for instance, over 99% of the population is Muslim. The World Factbook: Middle East: Iran, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (last visited October 2, 2017); The World Factbook: Middle East: Yemen, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ym.html (last visited October 2, 2017). 17 See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c). 18 Id. § 1.
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based persecution,” but only if the claimant belonged to a “minority religion in the individual’s country of nationality.”19 Although this exception was not expressly limited to religious minorities residing in Muslim-majority countries, President Trump explained in an interview that this exception was intended to give priority to Christian refugees over their Muslim counterparts.20
44. Like the current Proclamation, the First Executive Order attempted to mask its unconstitutional purposes with national security and foreign policy rationales, suggesting that its implementation would protect the country from terrorists.
45. The First Executive Order was immediately met with a series of legal challenges across the country. The day after the First Executive Order was issued, the U.S. District Court for the Eastern District of New York granted an Emergency Motion for Stay of Removal, enjoining the government from removing individuals with approved applications under the Refugee Admissions Program, holders of visas, and other individuals legally authorized to enter the United States from the seven countries designated in the First Executive Order. Darweesh v. Trump, No. 1:17-cv-00480, ECF 8 at 2 (E.D.N.Y. Jan. 28, 2017). It did so on the basis that the petitioners had a strong likelihood of success in establishing that removal would violate their rights to due process and equal protection, and that there was imminent danger of “substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to” the First Executive Order. Id.
19 Id. § 5(e). 20 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
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46. On February 3, 2017, the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order enjoining enforcement of several sections of the First Executive Order on a nationwide basis. Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 5 (W.D. Wash. Feb. 3, 2017). That order was upheld by the U.S. Court of Appeals for the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017).
47. During the pendency of the Washington case, the U.S. District Court for the Eastern District of Virginia preliminarily enjoined Section 3(c) of the First Executive Order, finding that the statements made by President Trump and his Administration demonstrated an intent to ban Muslims from the United States, and that the plaintiffs were therefore likely to succeed on the merits of their Establishment Clause claims. See Aziz v. Trump, No. 1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).
48. One week after the Ninth Circuit’s decision in Washington v. Trump, the Department of Justice informed the Ninth Circuit that the President intended to rescind the First Executive Order and replace it with a “new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” Defendants-Appellants’ Supplemental Brief on En Banc Consideration, Washington v. Trump, No. 17-35105, ECF 154 at 4 (9th Cir. Feb. 16, 2017).
49. On February 21, 2017, a White House Senior Policy Advisor elaborated during an interview that the intended revised executive order would include “mostly minor technical differences” but “[f]undamentally, you’re still going to have the same basic policy outcome for the country.”21
21 Matt Zapotosky, A new travel ban with ‘mostly minor technical differences’? That probably won’t cut it, analysts say, Wash. Post (Feb. 22, 2017), https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-
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50. On February 24, 2017, the Associated Press obtained a DHS report prepared at the request of the Acting Under Secretary for Intelligence and Analysis.22 That report found that citizenship is “likely an unreliable indicator” of terrorist activity,23 despite the First Executive Order’s supposed purpose to protect the nation from foreign terrorists.
C. The Second Executive Order 51. On March 6, 2017, President Trump issued a new executive order with the same name.24 The Second Executive Order removed Iraq from the list of countries from which nationals were categorically banned from entry into the United States, but subjected Iraqis entering the United States to enhanced vetting.25 The Second Executive Order also eliminated the priority for refugees of minority religions but still referenced “acts of gender-based violence against women, including so-called ‘honor killings’ in the United States by foreign nationals.”26 52. The Second Executive Order also directed the Secretary of Homeland Security to “conduct a worldwide review” to determine what information the U.S. government needed from foreign governments to adjudicate visa applications.27 53. On March 15, 2017, the U.S. District Court for the District of Hawaii issued a nationwide temporary restraining order against Sections 2 and 6 of the Second Executive Order.
minortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f91811e6-bf01-d47f8cf9b643_story.html. 22 Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24, 2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravel-bantrump/98374184/. 23 Id. 24 82 Fed. Reg. 13209 (March 6, 2017). 25 Id. § 4. 26 Id. § 11(a)(iii). 27 Id. § 2(a).
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Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).28 It did so on the basis that the plaintiffs “met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim.” Id. at 1123.
54. The next day, this Court issued a preliminary injunction against enforcement of Section 2(c) of the Second Executive Order (the provision restricting entry into the United States by nationals of Iran, Syria, Yemen, Sudan, Libya, and Somalia). Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The Court ruled that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause challenge. Id. at 564.
55. Speaking at a rally in Nashville, Tennessee, on the same day that the Hawaii Court issued its ruling, President Trump stated that the Second Executive Order was a “watereddown version” of the first one and that “we ought to go back to the first one and go all the way.”29
56. On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld in large part the nationwide injunction issued by this Court. IRAP, 857 F.3d at 606. The government filed a petition for writ of certiorari in the U.S. Supreme Court on June 1, 2017. On the same day, the government filed with the Supreme Court an application for a stay of the injunctions in both IRAP v. Trump and Hawaii v. Trump (the latter of which was still pending on appeal in the Ninth Circuit).
28 The Ninth Circuit lifted the injunction with respect to the review and reporting provisions of the Second Executive Order on June 12, 2017. Hawaii, 859 F.3d at 786. 29 Matt Zapotosky, et al., Federal judge in Hawaii freezes President Trump’s new entry ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyers-faceoff-on-trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c-11e793dc-00f9bdd74ed1 story.html?utm term=.bf85c7c44a4c.
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57. On June 12, 2017, the Ninth Circuit ruled on the Hawaii injunction, unanimously ruling in favor of the plaintiffs and upholding the injunction in large part. 859 F.3d at 741. Rather than relying on the constitutional grounds cited by the district court, the Ninth Circuit held that portions of the Second Executive Order likely exceeded the President’s authority under the INA. Id.
58. The provisions of the Second Executive Order were originally scheduled to end on June 14, 2017, raising questions about whether the appeal to the Supreme Court might be moot. That day, however, the White House issued a Presidential Memorandum delaying the start date of each of the provisions that had been enjoined by the courts until 72 hours after the injunctions were lifted or stayed as to those provisions.
59. On June 26, 2017, the Supreme Court granted the petitions for certiorari. It consolidated the cases and set them for argument during the first argument session of the Court’s next Term, in October 2017, and ordered the parties to address in their briefing the additional question whether the challenges became moot on June 14. 137 S.Ct.at 2087. The Court also 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. The portions of the injunctions not subject to the stay remain in effect, and the Second Executive Order therefore cannot be enforced against foreign nationals who do have such a “bona fide relationship.”30 The Ninth Circuit reviewed the District of Hawaii’s modified injunction, and in so doing ruled that the district court did not err in including
30 The Supreme Court’s order outlined the requirements for a bona fide relationship: “For individuals, a close familial relationship is required.” For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” 137 S.Ct. at 2088.
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grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States within the definition of bona fide close familial relationships. Hawaii v. Trump, __ F.3d __, 2017 WL 3911055 at *9 (9th Cir. September 7, 2017).
60. During the litigation prompted by the Second Executive Order, President Trump continued to make official statements underscoring that the Executive Orders, in each iteration, were intended to restrict Muslims from entering the United States. In response to a terrorist attack in London on September 15, 2017, for example, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!”31
D. The Proclamation 61. On September 24, 2017, President Trump issued the Proclamation, which now expands the Muslim ban to a ban of indefinite duration against the entry into the United States of nationals of the listed Muslim-majority countries, including individuals with bona fide relationships with American citizens and Lawful Permanent Residents.32 Unlike the two Executive Orders, there is no time limit in the Proclamation; affected persons are indefinitely banned from entering the United States.
31 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM), https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en. 32 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White House: Office of the Press Secretary (Sept. 24, 2017), Attach. A; https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-andprocesses-detecting-attempted-entry.
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62. The Proclamation expressly refers to the Second Executive Order, does not rescind or nullify the vast majority of the provisions of the Second Executive Order, and imposes the indefinite ban against entry into the United States as immigrants on nationals of the following six Muslim-majority countries, and broad bans on certain visas, with limited exceptions,33 as follows:
a. Chad: All nationals of Chad are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.34
b. Iran: All nationals of Iran are banned from entry into the United States, except under student and exchange visitor visas (F, M, and J), and such student and exchange visitor visa applicants are subject to unspecified “enhanced screening and vetting requirements.”35
c. Libya: All nationals of Libya are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.36
33 The visa bans outlined in Section 2 of the Proclamation do not apply to lawful permanent residents of the United States; foreign nationals admitted to the United States on or after the applicable effective date of the Proclamation; “any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatictype visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been granted asylum; refugees who have already been admitted; or individuals who have been granted relief under the Convention Against Torture. Id. § 3(b). 34 Id. § 2(a)(ii). 35 Id. § 2(b)(ii). 36 Id. § 2(c)(ii).
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d. Syria: All nationals of Syria are banned from entry into the United States.37 e. Yemen: All nationals of Yemen are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.38 f. Somalia: All nationals of Somalia are banned from entry into the United States as immigrants. Somali nationals traveling on non-immigrant visas are subject to unspecified “additional scrutiny.”39 63. The Proclamation’s restrictions that apply to individuals who were subject to the operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia, Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or entity in the United States—went into effect on September 24, 2017. All of the Proclamation’s other restrictions are set to go into effect on October 18, 2017. 64. The bans on entry into the United States by nationals of these Muslim-majority countries mean that U.S. citizens and Lawful Permanent Residents cannot reunite in the United States with their spouses, children, and parents who are nationals of countries subject to the Proclamation. And the Proclamation purports to justify its blanket restrictions on immigrant entry from all of these Muslim-majority countries by observing that Lawful Permanent Residents receive “more enduring rights” and are therefore “more difficult to remove than nonimmigrants.”40
37 Id. § 2(e)(ii). 38 Id. § 2(g)(ii). 39 Id. § 2(h)(ii). 40 Id. § 1(h)(ii).
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65. In an effort to disguise the underlying intent to ban entry of Muslims into the United States, the Proclamation—unlike its predecessor Executive Orders—also imposes nominal restrictions relating to nationals of two non-Muslim-majority countries: North Korea and Venezuela. The Proclamation bans immigrant and non-immigrant visas for North Korean nationals (except for the limited exceptions in § 3(b)), but the number of visas issued each year to North Korean nationals is extraordinarily low.41 And unlike the restrictions imposed for the Muslim-majority countries, most nationals of Venezuela generally are not subject to a ban; the Proclamation applies solely to a small group of officials of the Venezuelan government and their immediate family traveling under certain classes of non-immigrant visas.42 The additional travel restrictions involving these two non-Muslim-majority countries are thus without practical effect, and in any event cannot transform the unconstitutional Muslim ban into a permissible nationalsecurity measure.
66. Excluding the makeweight additions of North Korea and Venezuela, which are subject to only negligible impacts, the Proclamation restricts entry of more than 157 million nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Of those nationals, a conservative estimate is that at least 137 million of those people—over 87%—are Muslim.43
41 For example, according to the 2015 Yearbook of Immigration Statistics published by DHS, only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table 26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table3 (last published Dec. 15, 2016). 42 Attach. A § 2(f)(ii). 43 The World Factbook, Country Comparison: Population, CIA https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last
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67. Also to try to disguise its underlying religious purpose, the Proclamation purports to be based on the worldwide review of information-sharing practices, policies, and capabilities of foreign countries directed by the Second Executive Order. The Proclamation states that the Secretary of Homeland Security, with assistance from the Secretary of State and Director of National Intelligence, “developed a baseline for the kinds of information required from foreign governments” regarding individuals seeking entry into the United States,44 and evaluated each country against this baseline.45
68. The contents of the Department of Homeland Security’s review and evaluation have not been made public, despite discussion in the Proclamation indicating that portions have been shared with foreign governments during a “50-day engagement period” with other countries with respect to the baseline,46 and indicating that the review and evaluation contain information similar to that set forth publicly in the First and Second Executive Orders.
69. The government of Chad issued a statement on September 25, 2017, expressing “astonishment” and “incomprehension in the face of the official reasons for [the] decision” to extend the ban against entry to the United States to nationals of Chad.47
visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries subject to the Proclamation, in the total amount of more than 157 million people, as well as the estimated percentages of Muslims in each country. This calculation excludes the entire Muslim population of Somalia, for which information was not available; this suggests that the true proportion of the nationals subject to the ban who are Muslim is actually considerably higher than 87%. 44 Attach. A § 1(c). 45 Id. §§ 1(d), (e). 46 Id. § 1(f). 47 Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html.
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70. The Proclamation states that the Secretary of Homeland Security “assesse[d]” seven countries to “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors with respect to the baseline . . . such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.”48 The Secretary submitted a report on September 15, 2017, to the President “recommending entry restrictions and limitations” on nationals of the seven countries, but the specifics of those recommendations are not provided in the Proclamation. He also “assesse[d]” that Iraq “did not meet the baseline” but declared that “additional scrutiny” was recommended nonetheless. Although Somalia was not similarly “assessed” by the Secretary, he determined that “special circumstances” warrant “entry restrictions, limitations, and other measures” for nationals of Somalia.49 The Proclamation states that the President reviewed the report and imposed the “restrictions and limitations” by the proclamation because, in his judgment, they were necessary, among other reasons, “to elicit improved identity-management and information-sharing protocols and practices from foreign governments.”50
71. The Proclamation applies to nationals of the listed countries regardless of where they currently reside, including those who reside in other countries that have not been identified as having “‘inadequate’ identity-management protocols, information-sharing practices, and risk factors”—and even if those persons have resided outside their country of origin for their entire lives, and even if those persons reside outside their country of origin because of fear of persecution. This categorical ban on the entry into the United States of more than 157 million
48 Attach. A § 1(g). 49 Id. § 1(i). 50 Id. § 1(h)(i).
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nationals of six Muslim-majority nations cannot be justified by a single report prepared in a matter of months on worldwide practices, and cannot be reconciled with the framework of the INA.
72. The Proclamation’s purported reliance on various criteria and imposition of restrictions on North Korean nationals and on a small group of Venezuelan government officials paper over the legal and constitutional defects of the predecessor expressions of the Muslim ban with post-hoc national security justifications. The national-security and other purported rationales for the bans imposed by the Proclamation on millions of Muslims from the several Muslim-majority countries, which disproportionately harm their American Muslim relatives, are not bona fide reasons for the Proclamation.
73. The recently generated national security rationale cannot wipe away the antiMuslim bias that has animated President Trump’s dogged efforts to fulfill his promise to ban Muslims from entering this country. Indeed, the history of the President’s failed attempts to enact his intended Muslim ban through two Executive Orders supports the inference that the national security report is a pretext. And even if the national security report identifies legitimate vetting and information-sharing issues with respect to the specified countries, the categorical and undifferentiated ban of at least 137 million Muslims is a wildly overbroad response that violates both the INA and the Constitution.
CAUSES OF ACTION COUNT I
(Violation of the Immigration and Nationality Act) (All Parties Against All Defendants)
74. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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75. The Immigration and Nationality Act (“INA”) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A).
76. The Proclamation violates the INA by discriminating on the basis of nationality. 77. Defendants’ violation causes ongoing harm to Plaintiffs.
COUNT II (Exceeding the Executive’s Authority Under the Immigration and Nationality Act)
(All Parties Against All Defendants) 78. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 79. Congress established a detailed framework in the INA, 8 U.S.C. § 1182, of specific criteria for “classes of aliens ineligible for visas or admission,” 8 U.S.C. § 1182(a), including on “security and related grounds,” 8 U.S.C. § 1182(a)(3), specifically terrorism, 8 U.S.C. § 1182(a)(3)(B), 1182(a)(3)(F), and foreign policy, 8 U.S.C. § 1182(a)(3)(C). Section 1182 provides for suspension of entry or imposition of restrictions on aliens by the President “for such period” as deemed necessary if he “finds” that entry of the aliens or class of aliens “would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The INA further addresses aspects of immigration and other entry into the United States in various provisions throughout the statute. 80. The Proclamation exceeds the Executive’s authority under the INA, including under 8 U.S.C. §§ 1182(f). 81. Defendants’ violation causes ongoing harm to Plaintiffs.
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COUNT III (Violation of the Establishment Clause of the First Amendment)
(All Plaintiffs Against All Defendants) 82. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 83. The Establishment Clause of the First Amendment to the U.S. Constitution prohibits the government from “differentiat[ing] among religions.” Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson v. Valente, 456 U.S. 228 (1982)). 84. The Establishment Clause further prohibits the government from taking actions that lack a secular purpose or have the principal or primary effect of advancing or inhibiting religion. 85. The Establishment Clause prohibits the government from endorsing or disapproving of a religion or particular religious beliefs. 86. The Proclamation impermissibly discriminates on the basis of religion and constitutes an unconstitutional denominational preference against Muslims. Despite being cloaked in the rhetoric of national security, the Proclamation—like the Executive Orders that preceded it—is intended to and does disproportionately harm Muslims because of their faith. The six countries whose nationals the Proclamation meaningfully restricts—Chad, Iran, Libya, Syria, Yemen, and Somalia—are all Muslim-majority countries. The other two countries nominally covered by the ban are North Korea, whose nationals currently receive a vanishingly small number of visas, and Venezuela, whose nationals are affected only if they are family members of government officials “involved in screening and vetting procedures” who are not seeking to immigrate to the United States. Thus the Proclamation’s effects on non-Muslim countries’ nationals are de minimis. The continued outsized effect on Muslim entrants demonstrates that the Proclamation discriminates on the basis of religion.
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87. In addition, the Proclamation violates the Establishment Clause because the President’s repeatedly stated intent to ban Muslims from immigrating to or entering the United States and the Proclamation’s direct lineage from and effectuation of those policy statements, demonstrate that the Proclamation lacks a predominantly secular purpose and that it has a principal effect of discriminating against, denigrating, and disfavoring Muslims.
88. Finally, the Proclamation communicates official disapproval of Islam, stigmatizing Plaintiffs and their religion.
89. Defendants’ violation causes ongoing harm to Plaintiffs. COUNT IV
(Violation of the Free Speech Clause of the First Amendment) (Iranian Alliances Across Borders Against All Defendants)
90. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
91. The Free Speech Clause of the First Amendment protects the “right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
92. The Proclamation violates the right of IAAB to receive information and ideas from the Persian scholars (many of whom are nationals of Iran) whom IAAB routinely invites to speaking engagements and other cultural community-building events.
93. Defendants’ violation causes ongoing harm to IAAB. COUNT V
(Violation of Equal Protection Under the Fifth Amendment) (All Plaintiffs Against All Defendants)
94. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
95. Plaintiffs are entitled to the protections of the Fifth Amendment.
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96. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the law.
97. The Proclamation was motivated by animus and a desire to harm a particular group.
98. The Proclamation has a disparate impact, targeting individuals for discriminatory treatment on the basis of religion and national origin. The discriminatory terms and application of the Proclamation are not justified by legitimate governmental interests, much less by compelling ones.
99. Defendants have violated the equal protection guarantee of the Fifth Amendment. 100. Defendants’ violation causes ongoing harm to Plaintiffs.
COUNT VI (Violation of Procedural Due Process under the Fifth Amendment)
(All Plaintiffs Against All Defendants) 101. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 102. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 103. Congress has granted statutory rights and prescribed procedures applicable to prospective immigrants and refugees. Due process rights attach to those statutory rights. 104. In addition, United States citizens have a cognizable liberty interest with respect to the ability of specific noncitizen family members to travel to the United States. 105. The Proclamation, in depriving immigrants and refugees of the rights afforded to them by statute, and in depriving United States citizens of travel by specific noncitizen family members to the United States, violates the procedural due process guarantees of the Fifth Amendment.
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106. Defendants’ violation causes ongoing harm to Plaintiffs. PRAYER FOR RELIEF
WHEREFORE, all Plaintiffs seek an order and judgment to: 107. Declare that the Proclamation, on its face or as applied, violates the Immigration and Nationality Act, exceeds the Executive’s authority under the Act, and violates the Constitution and laws of the United States; 108. Enter a nationwide injunction enjoining Defendants from:
a. Enforcing the Proclamation; b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of
any immigrant or nonimmigrant visa; c. Applying the Proclamation to deny or suspend entry or admission of any person; d. Applying the Proclamation to prohibit any person from applying for or receiving
any benefit under the Immigration and Nationality Act; e. Denying any person subject to the Proclamation access to legal counsel of his or
her choice; f. Applying the Proclamation to instruct any airline or other common carrier to deny
passage to any person; g. Applying the Proclamation to impose any penalty on any airline or other common
carrier for allowing passage to any person covered by the Proclamation; 109. Order Defendants promptly to provide written guidance to employees, contractors, and agents of DHS, the State Department, U.S. Customs and Border Protection, and all other United States government officials and entities necessary to ensure full and timely compliance with all terms of the order to be entered by the Court;
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110. Require Defendants promptly to rescind any guidance, directive, memorandum, or statement interpreting or applying the Proclamation that conflicts with any term of the order to be entered by the Court;
111. Require Defendants promptly to post a copy of the written guidance required under paragraph 114 on government websites, including state.gov;
112. Require Defendants promptly to update all relevant public guidance, documentation, and FAQs to reflect the terms of the order to be entered by the Court;
113. Require Defendants to instruct the consular officials handling the visa applications of Plaintiffs, their families, and IAAB’s invitees and others attending IAAB programs to print and issue the visas and travel documents within 10 days of the Court’s order;
114. Require Defendants to instruct the relevant officials from the State Department and Department of Homeland Security not to deny visas or entry into the United States to Plaintiffs, their families, or IAAB’s invitees and others attending IAAB programs for any reason directed by or arising from the Proclamation or guidance implementing it;
115. Require Defendants to process without undue delay visa applications submitted by nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
116. Require Defendants to file with the Court, on the tenth day of each month following the entry of the Court’s order, a signed and verified declaration stating:
a. The number of United States visas granted during the previous month to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
b. The number of United States visa applications denied during the previous month to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
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c. For each denied visa application under the above subparagraph (b), the identifying

information or numbers for the application for the Court’s reference;

d. For each denied visa application under the above subparagraph (b), a detailed

explanation of the reason or reasons why the application was denied. The

explanation under this subsection must state the facts, authorities, and reasoning

relevant to the Defendants’ decision on the application;

117. Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42

U.S.C. § 1988;

118. Any other relief that the Court deems necessary or just to cure the violations

specified in this Complaint or that justice may require.

Dated: October 2, 2017

Respectfully submitted,

Johnathan Smith* Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild* Andrew Nellis*^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org

Mark H. Lynch (Bar # 12560) Mark W. Mosier* Herbert L. Fenster* José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606) COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP

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nellis@au.org

1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

Attorneys for Plaintiffs
* pro hac vice application forthcoming ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

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Attachment A

Case 8:17-cv-02921-GJH Document 1-2 Filed 10/02/17 Page 2 of 13 Federal Register / Vol. 82, No. 186 / Wednesday, September 27, 2017 / Presidential Documents 45161
Presidential Documents
Proclamation 9645 of September 24, 2017
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
By the President of the United States of America
A Proclamation
In Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), on the recommendations of the Secretary of Homeland Security and the Attorney General, I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history. As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat. Our Nation is safer as a result of this work.
Despite those efforts, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries—out of nearly 200 evaluated—remain deficient at this time with respect to their identity-management and informationsharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.
As President, I must act to protect the security and interests of the United States and its people. I am committed to our ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks. Some of the countries with remaining inadequacies face significant challenges. Others have made strides to improve their protocols and procedures, and I commend them for these efforts. But until they satisfactorily address the identified inadequacies, I have determined, on the basis of recommendations from the Secretary of Homeland Security and other members of my Cabinet, to impose certain conditional restrictions and limitations, as set forth more fully below, on entry into the United States of nationals of the countries identified in section 2 of this proclamation.
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the
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interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks and other public-safety threats. Screening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy. They enhance our ability to detect foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat, and they aid our efforts to prevent such individuals from entering the United States.
(b) Information-sharing and identity-management protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States. Governments manage the identity and travel documents of their nationals and residents. They also control the circumstances under which they provide information about their nationals to other governments, including information about known or suspected terrorists and criminal-history information. It is, therefore, the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.
(c) Section 2(a) of Executive Order 13780 directed a ‘‘worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or publicsafety threat.’’ That review culminated in a report submitted to the President by the Secretary of Homeland Security on July 9, 2017. In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:
(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is
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a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.
(d) The Department of Homeland Security, in coordination with the Department of State, collected data on the performance of all foreign governments and assessed each country against the baseline described in subsection (c) of this section. The assessment focused, in particular, on identity management, security and public-safety threats, and national security risks. Through this assessment, the agencies measured each country’s performance with respect to issuing reliable travel documents and implementing adequate identity-management and information-sharing protocols and procedures, and evaluated terrorism-related and public-safety risks associated with foreign nationals seeking entry into the United States from each country.
(e) The Department of Homeland Security evaluated each country against the baseline described in subsection (c) of this section. The Secretary of Homeland Security identified 16 countries as being ‘‘inadequate’’ based on an analysis of their identity-management protocols, information-sharing practices, and risk factors. Thirty-one additional countries were classified ‘‘at risk’’ of becoming ‘‘inadequate’’ based on those criteria.
(f) As required by section 2(d) of Executive Order 13780, the Department of State conducted a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either ‘‘inadequate’’ or ‘‘at risk,’’ to improve their performance with respect to the baseline described in subsection (c) of this section. Those engagements yielded significant improvements in many countries. Twenty-nine countries, for example, provided travel document exemplars for use by Department of Homeland Security officials to combat fraud. Eleven countries agreed to share information on known or suspected terrorists.
(g) The Secretary of Homeland Security assesses that the following countries continue to have ‘‘inadequate’’ identity-management protocols, information-sharing practices, and risk factors, with respect to the baseline described in subsection (c) of this section, such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Secretary of Homeland Security also assesses that Iraq did not meet the baseline, but that entry restrictions and limitations under a Presidential proclamation are not warranted. The Secretary of Homeland Security recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States. In reaching these conclusions, the Secretary of Homeland Security considered the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
(h) Section 2(e) of Executive Order 13780 directed the Secretary of Homeland Security to ‘‘submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.’’ On September 15, 2017, the Secretary of Homeland Security submitted a report to me recommending entry restrictions and limitations on certain nationals of 7 countries determined to be ‘‘inadequate’’ in providing such information and in light of other factors discussed in the report. According to the report, the recommended restrictions would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United
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States. The restrictions also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.
(i) In evaluating the recommendations of the Secretary of Homeland Security and in determining what restrictions to impose for each country, I consulted with appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General. I considered several factors, including each country’s capacity, ability, and willingness to cooperate with our identity-management and information-sharing policies and each country’s risk factors, such as whether it has a significant terrorist presence within its territory. I also considered foreign policy, national security, and counterterrorism goals. I reviewed these factors and assessed these goals, with a particular focus on crafting those country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur. The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States. These restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments; and to advance foreign policy, national security, and counterterrorism objectives.
(ii) After reviewing the Secretary of Homeland Security’s report of September 15, 2017, and accounting for the foreign policy, national security, and counterterrorism objectives of the United States, I have determined to restrict and limit the entry of nationals of 7 countries found to be ‘‘inadequate’’ with respect to the baseline described in subsection (c) of this section: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. These restrictions distinguish between the entry of immigrants and nonimmigrants. Persons admitted on immigrant visas become lawful permanent residents of the United States. Such persons may present national security or public-safety concerns that may be distinct from those admitted as nonimmigrants. The United States affords lawful permanent residents more enduring rights than it does to nonimmigrants. Lawful permanent residents are more difficult to remove than nonimmigrants even after national security concerns arise, which heightens the costs and dangers of errors associated with admitting such individuals. And although immigrants generally receive more extensive vetting than nonimmigrants, such vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies, or presents risks to the national security of the United States. For all but one of those 7 countries, therefore, I am restricting the entry of all immigrants.
(iii) I am adopting a more tailored approach with respect to nonimmigrants, in accordance with the recommendations of the Secretary of Homeland Security. For some countries found to be ‘‘inadequate’’ with respect to the baseline described in subsection (c) of this section, I am restricting the entry of all nonimmigrants. For countries with certain mitigating factors, such as a willingness to cooperate or play a substantial role in combatting terrorism, I am restricting the entry only of certain categories of nonimmigrants, which will mitigate the security threats presented by their entry into the United States. In those cases in which future cooperation seems reasonably likely, and accounting for foreign policy, national security, and counterterrorism objectives, I have tailored the restrictions to encourage such improvements. (i) Section 2(e) of Executive Order 13780 also provided that the ‘‘Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which
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any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.’’ The Secretary of Homeland Security determined that Somalia generally satisfies the information-sharing requirements of the baseline described in subsection (c) of this section, but its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia’s identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States. Based on the considerations mentioned above, and as described further in section 2(h) of this proclamation, I have determined that entry restrictions, limitations, and other measures designed to ensure proper screening and vetting for nationals of Somalia are necessary for the security and welfare of the United States.
(j) Section 2 of this proclamation describes some of the inadequacies that led me to impose restrictions on the specified countries. Describing all of those reasons publicly, however, would cause serious damage to the national security of the United States, and many such descriptions are classified.
Sec. 2. Suspension of Entry for Nationals of Countries of Identified Concern. The entry into the United States of nationals of the following countries is hereby suspended and limited, as follows, subject to categorical exceptions and case-by-case waivers, as described in sections 3 and 6 of this proclamation:
(a) Chad.
(i) The government of Chad is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Chad has shown a clear willingness to improve in these areas. Nonetheless, Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion. Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. At this time, additional information sharing to identify those foreign nationals applying for visas or seeking entry into the United States who represent national security and public-safety threats is necessary given the significant terrorism-related risk from this country.
(ii) The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended.
(b) Iran.
(i) Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism.
(ii) The entry into the United States of nationals of Iran as immigrants and as nonimmigrants is hereby suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
(c) Libya.
(i) The government of Libya is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding on that cooperation, including in the areas of immigration and border management. Libya, nonetheless, faces significant challenges in sharing several types of information, including public-safety
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and terrorism-related information necessary for the protection of the national security and public safety of the United States. Libya also has significant inadequacies in its identity-management protocols. Further, Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. The substantial terrorist presence within Libya’s territory amplifies the risks posed by the entry into the United States of its nationals.
(ii) The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended.
(d) North Korea.
(i) North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.
(ii) The entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended.
(e) Syria.
(i) Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism. Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Syria as immigrants and nonimmigrants is hereby suspended.
(f) Venezuela.
(i) Venezuela has adopted many of the baseline standards identified by the Secretary of Homeland Security and in section 1 of this proclamation, but its government is uncooperative in verifying whether its citizens pose national security or public-safety threats. Venezuela’s government fails to share public-safety and terrorism-related information adequately, fails to satisfy at least one key risk criterion, and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. There are, however, alternative sources for obtaining information to verify the citizenship and identity of nationals from Venezuela. As a result, the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies.
(ii) Notwithstanding section 3(b)(v) of this proclamation, the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures—including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations—and their immediate family members, as nonimmigrants on business (B–1), tourist (B–2), and business/tourist (B–1/B–2) visas, is hereby suspended. Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
(g) Yemen.
(i) The government of Yemen is an important and valuable counterterrorism partner, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Yemen, nonetheless, faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory. The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.
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(ii) The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended. (h) Somalia. (i) The Secretary of Homeland Security’s report of September 15, 2017, determined that Somalia satisfies the information-sharing requirements of the baseline described in section 1(c) of this proclamation. But several other considerations support imposing entry restrictions and limitations on Somalia. Somalia has significant identity-management deficiencies. For example, while Somalia issues an electronic passport, the United States and many other countries do not recognize it. A persistent terrorist threat also emanates from Somalia’s territory. The United States Government has identified Somalia as a terrorist safe haven. Somalia stands apart from other countries in the degree to which its government lacks command and control of its territory, which greatly limits the effectiveness of its national capabilities in a variety of respects. Terrorists use under-governed areas in northern, central, and southern Somalia as safe havens from which to plan, facilitate, and conduct their operations. Somalia also remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States. The State Department’s 2016 Country Reports on Terrorism observed that Somalia has not sufficiently degraded the ability of terrorist groups to plan and mount attacks from its territory. Further, despite having made significant progress toward formally federating its member states, and its willingness to fight terrorism, Somalia continues to struggle to provide the governance needed to limit terrorists’ freedom of movement, access to resources, and capacity to operate. The government of Somalia’s lack of territorial control also compromises Somalia’s ability, already limited because of poor recordkeeping, to share information about its nationals who pose criminal or terrorist risks. As a result of these and other factors, Somalia presents special concerns that distinguish it from other countries.
(ii) The entry into the United States of nationals of Somalia as immigrants is hereby suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States. Sec. 3. Scope and Implementation of Suspensions and Limitations. (a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspensions of and limitations on entry pursuant to section 2 of this proclamation shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation;
(ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and
(iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation. (b) Exceptions. The suspension of entry pursuant to section 2 of this proclamation shall not apply to: (i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this proclamation;
(iii) any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
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(iv) any dual national of a country designated under section 2 of this proclamation when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C–2 visa for travel to the United Nations, or G–1, G–2, G–3, or G–4 visa; or
(vi) any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture. (c) Waivers. Notwithstanding the suspensions of and limitations on entry set forth in section 2 of this proclamation, a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent with subsections (i) through (iv) of this subsection. The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants. (i) A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
(A) denying entry would cause the foreign national undue hardship;
(B) entry would not pose a threat to the national security or public safety of the United States; and
(C) entry would be in the national interest.
(ii) The guidance issued by the Secretary of State and the Secretary of Homeland Security under this subsection shall address the standards, policies, and procedures for:
(A) determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States;
(B) determining whether the entry of a foreign national would be in the national interest;
(C) addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to the restrictions and limitations imposed by this proclamation;
(D) assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy the requirements of subsection (i) of this subsection; and
(E) determining the special circumstances that would justify granting a waiver under subsection (iv)(E) of this subsection.
(iii) Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa adjudication process will be effective both for the issuance of a visa and for any subsequent entry on that visa, but will leave unchanged all other requirements for admission or entry.
(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to the limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:
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(A) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
(B) the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
(C) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
(D) the foreign national 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, and the denial of entry would cause the foreign national undue hardship;
(E) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(F) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;
(G) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(H) the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
(I) the foreign national is traveling as a United States Government– sponsored exchange visitor; or
(J) the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Sec. 4. Adjustments to and Removal of Suspensions and Limitations. (a) The Secretary of Homeland Security shall, in consultation with the Secretary of State, devise a process to assess whether any suspensions and limitations imposed by section 2 of this proclamation should be continued, terminated, modified, or supplemented. The process shall account for whether countries have improved their identity-management and information-sharing protocols and procedures based on the criteria set forth in section 1 of this proclamation and the Secretary of Homeland Security’s report of September 15, 2017. Within 180 days of the date of this proclamation, and every 180 days thereafter, the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies, shall submit a report with recommendations to the President, through appropriate Assistants to the President, regarding the following:
(i) the interests of the United States, if any, that continue to require the suspension of, or limitations on, the entry on certain classes of nationals of countries identified in section 2 of this proclamation and whether the restrictions and limitations imposed by section 2 of this proclamation should be continued, modified, terminated, or supplemented; and
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(ii) the interests of the United States, if any, that require the suspension of, or limitations on, the entry of certain classes of nationals of countries not identified in this proclamation.
(b) The Secretary of State, in consultation with the Secretary of Homeland Security, the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the head of any other executive department or agency (agency) that the Secretary of State deems appropriate, shall engage the countries listed in section 2 of this proclamation, and any other countries that have information-sharing, identity-management, or risk-factor deficiencies as practicable, appropriate, and consistent with the foreign policy, national security, and public-safety objectives of the United States.
(c) Notwithstanding the process described above, and consistent with the process described in section 2(f) of Executive Order 13780, if the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Director of National Intelligence, determines, at any time, that a country meets the standards of the baseline described in section 1(c) of this proclamation, that a country has an adequate plan to provide such information, or that one or more of the restrictions or limitations imposed on the entry of a country’s nationals are no longer necessary for the security or welfare of the United States, the Secretary of Homeland Security may recommend to the President the removal or modification of any or all such restrictions and limitations. The Secretary of Homeland Security, the Secretary of State, or the Attorney General may also, as provided for in Executive Order 13780, submit to the President the names of additional countries for which any of them recommends any lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
Sec. 5. Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:
(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;
(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and
(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.
(b) The initial report required under subsection (a) of this section shall be submitted within 180 days of the date of this proclamation; the second report shall be submitted within 270 days of the first report; and reports shall be submitted annually thereafter.
(c) The agency heads identified in subsection (a) of this section shall coordinate any policy developments associated with the reports described in subsection (a) of this section through the appropriate Assistants to the President.
Sec. 6. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of this proclamation.
(b) In implementing this proclamation, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including those that provide an opportunity for individuals to enter the United States on the basis of a credible claim of fear of persecution or torture.
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(c) No immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This proclamation shall not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States. Sec. 7. Effective Dates. Executive Order 13780 ordered a temporary pause on the entry of foreign nationals from certain foreign countries. In two cases, however, Federal courts have enjoined those restrictions. The Supreme Court has stayed those injunctions as to foreign nationals who lack a credible claim of a bona fide relationship with a person or entity in the United States, pending its review of the decisions of the lower courts.
(a) The restrictions and limitations established in section 2 of this proclamation are effective at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals who:
(i) were subject to entry restrictions under section 2 of Executive Order 13780, or would have been subject to the restrictions but for section 3 of that Executive Order, and
(ii) lack a credible claim of a bona fide relationship with a person or entity in the United States. (b) The restrictions and limitations established in section 2 of this proclamation are effective at 12:01 a.m. eastern daylight time on October 18, 2017, for all other persons subject to this proclamation, including nationals of: (i) Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and
(ii) Chad, North Korea, and Venezuela. Sec. 8. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the national security, foreign policy, and counterterrorism interests of the United States. Accordingly:
(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and
(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders. Sec. 9. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
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(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of September, in the year of our Lord two thousand seventeen, and of the Independence of the United States of America the two hundred and forty-second.
[FR Doc. 2017–20899 Filed 9–26–17; 11:15 am] Billing code 3295–F7–P
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 Case 8:17-cv-02921-TDC Document 26 Filed 10/06/17 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.,

Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Civil Action No.: 17-CV-2921 Judge Chuang

Defendants.

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs hereby move for a preliminary injunction as set forth below and for the reasons

set forth in the accompanying Memorandum of Law in Support of Plaintiffs’ Motion for a

Preliminary Injunction and supporting exhibits,1 and the Memorandum of Law in Support of

Plaintiffs’ Motion for a Preliminary Injunction filed today, October 6, 2017, in Int’l Refugee

Assist. Project v. Trump, No. 8:17-cv-00361 (collectively, the “Memoranda”). Fed. R. Civ. P.

65. Plaintiffs seek to restrain and enjoin Defendants from enforcing or implementing the

proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted

Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”).

As demonstrated in the Memoranda, the Proclamation and Defendants’ implementation of it

violate the Immigration and Nationality Act and its implementing regulations and the First and

Fifth Amendments to the U.S. Constitution.

1 Certain exhibits are redacted to protect the identity of Doe Plaintiffs who filed a Motion for Permission to Proceed under Pseudonyms. ECF No. 6 (filed Oct. 3, 2017).
1

Case 8:17-cv-02921-TDC Document 26 Filed 10/06/17 Page 2 of 3

For the foregoing reasons, Plaintiffs respectfully request that this Court grant their

Motion for a Preliminary Injunction.

A proposed Order is attached.

Dated: October 6, 2017

Respectfully submitted,

Johnathan Smith Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild Andrew Nellis^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

_____________/s/_________ Mark H. Lynch (Bar # 12560) Mark W. Mosier* Herbert L. Fenster** José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606) COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

* Pro hac vice applications pending. ** Pro hac vice application forthcoming. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

2

Case 8:17-cv-02921-TDC Document 26 Filed 10/06/17 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that, on October 6, 2017, a copy of the foregoing document and its attachments was served on counsel for Defendants, via CM/ECF.
________/s/_________ Mark H. Lynch (Bar # 12560)

Case 8:17-cv-02921-TDC Document 26-1 Filed 10/06/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,

v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Civil Action No. 17-CV-2921 Judge Chuang

Defendants.

ORDER Upon full consideration of Plaintiffs’ Motion for a Preliminary Injunction and Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction, it is hereby ORDERED that said Motion is GRANTED. Defendants are enjoined from:
a. Enforcing the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”);
b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of any immigrant or nonimmigrant visa;
c. Applying the Proclamation to deny or suspend entry or admission of any person; d. Applying the Proclamation to prohibit any person from applying for or receiving
any benefit under the Immigration and Nationality Act. So Ordered.

Case 8:17-cv-02921-TDC Document 26-1 Filed 10/06/17 Page 2 of 2

Signed this ___ day of __________, 2017.

_______________________ Judge Theodore D. Chuang

Case 8:17-cv-02921-TDC Document 26-2 Filed 10/06/17 Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Civil Action No.: 17-CV-2921 Judge Chuang

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 8:17-cv-02921-TDC Document 26-2 Filed 10/06/17 Page 2 of 10
Plaintiffs respectfully request a preliminary injunction preventing Defendants from implementing or enforcing the presidential proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”). For the reasons stated in the memorandum in support of the motion for a preliminary injunction filed today, October 6, 2017, in Int’l Refugee Assist. Project v. Trump, No. 8:17-cv-00361, Plaintiffs are likely to succeed on the merits of their claims, and the balance of equities and public interest favor an injunction. For the reasons stated below, Plaintiffs have standing to bring their claims and will suffer irreparable harm without an injunction.
FACTUAL BACKGROUND Plaintiffs are a national nonprofit organization with significant operations in Maryland and six Maryland residents. They will suffer substantial and irreparable harm if the Proclamation is not enjoined. 1. Iranian Alliances Across Borders (“IAAB”) is a national organization whose mission is to strengthen the Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across borders and between communities. Declaration of Mana Kharrazi ¶¶ 2, 4 (attached hereto as Exhibit 1). IAAB organizes camps for youths, regional summits, Persian-language educational events, international conferences on the Iranian diaspora, and other activities. Id. ¶¶ 9-17. IAAB invites prominent scholars and other participants from outside the country, including from Iran, to the United States for these events. Id. ¶ 18. As a result of the President’s travel bans, IAAB has devoted substantial time supporting its members who have been “subjected to hate speech and intimidation in public places.” Id. ¶ 7. The travel bans also have harmed IAAB by causing a reduction in applications for IAAB’s
1

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summer camps from people residing abroad. Id. ¶ 9. If the Proclamation is not enjoined, it will significantly interfere with IAAB’s ability to attract foreign visitors to its events. Id. ¶ 21. IAAB will hold an International Conference on the Iranian Diaspora in April 2018, which will include “scholars, students, journalists, artists, community leaders and other interested people” discussing “issues facing the Iranian diaspora community.” Id. ¶ 17. Unless the Proclamation is enjoined, Iranian nationals will be unable to attend the conference. Id. ¶ 21.
2. Jane Doe #1 is a United States citizen who came to the U.S. in 2001 as a refugee, fleeing religious persecution in Iran. Declaration of Jane Doe #1 ¶¶ 2-3 (attached hereto as Exhibit 2). Until recently, she lived in Bethesda, Maryland. Id. ¶ 7. She has relocated to the United Arab Emirates on a temporary basis, because her husband currently lives there and does not currently have permission to reside in the United States. Id. ¶ 6. In June 2016, she submitted an I-130 immigration form for her husband, and the request was approved on September 20, 2017. Id. He is now waiting for his interview, which would typically occur within a few months. Id. If the Proclamation is not enjoined, his visa will be suspended, and Jane Doe #1 and her husband will be indefinitely prevented from building their life together in Maryland as they had hoped. Id. ¶ 8. Their residency status in the United Arab Emirates is uncertain; they can never receive permanent residency and must continue to reapply for temporary residency every three years. Id. ¶ 9. They would face persecution if forced to return to Iran. Id. ¶ 10.
3. Jane Doe #2 is a U.S. citizen of Iranian origin who has lived her entire life in Maryland. Declaration of Jane Doe #2 ¶ 2 (attached hereto as Exhibit 3). She is a recent graduate of the University of Maryland, College Park, and continues to live and work in Maryland. Id. ¶¶ 34. In February 2017, she applied for a K-1 visa for her fiancé who lives in Iran, and he completed his interview at the U.S. Embassy in Turkey on August 4, 2017. Id. ¶¶ 5-6. If the
2

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Proclamation takes effect before the visa application is granted, Jane Doe #2 and her fiancé will not be able to live together in the United States. She will “have to choose between [her] home and [her] country here in Maryland and the love of [her] life, the man [she] want[s] to marry.” Id. ¶ 7.
4. Jane Doe #3 is a U.S. citizen of Iranian origin who lives in Potomac, Maryland. Declaration of Jane Doe #3 ¶¶ 2, 4 (attached hereto as Exhibit 4). She came to the United States as a student in 1995 and became a citizen in 2004. Id. ¶ 3. She has a Master’s Degree in Education from the George Washington University, and has been a special-education teacher for Montgomery County Public Schools since 2006. Id. ¶ 5. Her mother and oldest brother also immigrated and have become U.S. citizens, and her father is a Lawful Permanent Resident. Id. ¶ 6. Her youngest brother is the only family member remaining in Iran. Id. ¶ 7. Jane Doe #3 has an approved I-130 application for him to come to the United States, and he is waiting for an interview, which should be scheduled soon. Id. ¶ 7. If the Proclamation is not enjoined, processing of her petition will be suspended and she will be indefinitely prevented from reuniting here with her brother.
5. Jane Doe #5 is a 79-year-old Iranian national and Lawful Permanent Resident of the United States, who resides in Maryland. Declaration of Jane Doe #5 ¶¶ 2-3, 6 (attached hereto as Exhibit 5). She and her 90-year-old husband moved to the United States in 2010 to join their son, who became a U.S. citizen in 2009. Id. ¶¶ 2-3, 6. Her other son remains in Iran. Id. ¶ 4. His I-130 application has been approved, and he is now awaiting final approval to come to the United States. Id. ¶¶ 4-5. Jane Doe #5 is wheelchair-bound and her husband also has significant health problems. Id. ¶ 6. Given her age and health problems, the Proclamation has caused her to be “extremely anxious, sad, and worried” that she “will never be able to see [her] son.” Id. ¶ 7.
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6. John Doe #6 is an Iranian national and a Lawful Permanent Resident of the United States, who has lived in the United States for five years and works as an engineer. Declaration of John Doe #6 ¶¶ 2-3 (attached hereto as Exhibit 6). His wife is also Iranian; she works as a biochemistry researcher at the National Institutes of Health. Id. ¶ 2. They have together made their home in Maryland. Id. ¶ 3. John Doe #6 and his wife came to the United States to contribute their professional skills to their new home, but now they feel “targeted and threatened” by the Proclamation’s “hostility to Iranians generally and to Muslims in particular.” Id. ¶¶ 7, 9. His mother-in-law and sister-in-law have applied for tourist visas to visit them, and both had their interviews at the U.S. Embassy in Dubai on January 5, 2017. Id. ¶ 5. If their visas are not issued before the Proclamation takes effect, John Doe #6 and his wife will indefinitely be separated from some of their closest and dearest family members.
ARGUMENT I. Plaintiffs Have Standing To Assert Their Claims.
A plaintiff has standing if three requirements are met: (1) she has “suffered injury in fact”; (2) the injury is “fairly traceable to the defendants’ actions”; and (3) the injury is “likely” to be redressed by a favorable decision.” Int’l Refugee Assist. Project v. Trump, 857 F.3d 554, 581 (4th Cir. 2017) (“IRAP II”). A claim is justiciable so long as one plaintiff establishes standing to bring it. See Int’l Refugee Assist. Project v. Trump, 241 F. Supp. 3d 539, 549 (D. Md. 2017) (“IRAP I”). Plaintiffs have standing to bring each of their claims.
Injury in fact. Plaintiffs will suffer injury-in-fact unless the Proclamation is enjoined. The Doe Plaintiffs will be injured because the Proclamation will indefinitely delay the issuance of visas to their loved ones, and could make it impossible for them to get visas. For example, Jane Doe #1 has an application pending for her husband to come to the United States, Jane Doe #2 has an application pending for her fiancé, Jane Doe #3 has an application pending for her
4

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brother, Jane Doe #5 has an application pending for her son, and John Doe #6’s mother-in-law and sister-in-law have pending applications for visitor visas. See pp. 1-4 supra. The Proclamation would prevent all of these applications from being granted.
These delays in issuing visas satisfy the injury-in-fact requirement. In IRAP II, the Fourth Circuit held that Doe #1 in that litigation had established injury-in-fact because the challenged executive order (“EO-2”) would “bar his wife’s entry into the United States and prolong their separation.” IRAP II, 857 F.3d 554 at 583. The government did not challenge that “prolonged separation of family members can constitute an injury-in-fact,” but instead argued that the injury was not imminent. Id. Rejecting that argument, the Fourth Circuit found “a ‘real and immediate’ threat that [EO-2] would prolong Doe #1’s separation from his wife, either by delaying the issuance of her visa or denying her visa and forcing her to restart the application process.” Id. at 584 (citation omitted). The Ninth Circuit reached the same conclusion in Hawaii v. Trump, holding that the plaintiff had standing because EO-2 created “a barrier to reunification with [plaintiff’s] mother-in-law in light of her stalled visa process.” 859 F.3d 741, 763 (9th Cir. 2017); see also IRAP I, 241 F. Supp. 3d at 549 (plaintiffs asserted sufficient injury because “the delay or denial of the issuance of visas will cause injury in the form of continued separation from their family members”).1
Plaintiffs also suffer injury-in-fact because the Proclamation sends the message that Muslims “are outsiders, not full members of the political community.” IRAP II, 857 F.3d at 582
1 Plaintiffs similarly have standing to bring an equal protection claim because they allege that the Proclamation denies them the same opportunity as non-Muslims to seek visas for their relatives. See, e.g., Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”).
5

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(quotation marks and citation omitted). As John Doe #6 explains, “I feel personally attacked, targeted, and disparaged by this new Proclamation, which shows hostility to Iranians generally and to Muslims in particular. . . . And it makes me fear for my safety and the safety of my wife, my loved ones, and my community.” John Doe #6 Decl. ¶ 9. Other plaintiffs feel the same way. See, e.g., Jane Doe #2 Decl. ¶ 9 (“I feel dismayed and fearful that my country is enacting official policies that discriminate against me and make me feel that I do not belong here.”).
The Fourth Circuit held that this injury is sufficient to establish standing. As the court of appeals explained: “‘Feelings of marginalization and exclusion are cognizable forms of injury.’” IRAP II, 857 F.3d at 582 (quoting Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012)). That is because “one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion ‘that they are outsiders, not full members of the political community.’” Id. (quoting Moss, 683 F.3d at 607). In IRAP II, Doe #1 explained how EO-2 had “caused him to fear for his personal safety in this country and wonder whether he should give up his career in the United States and return to Iran to be with his wife.” Id. at 584-85. The Fourth Circuit held that this evidence was sufficient to establish standing because it was “consistent with the ‘[f]eelings of marginalization and exclusion’ injury [the court] recognized in Moss, 683 F.3d at 607.” Id. at 585.
IAAB will also suffer injury-in-fact if the Proclamation is not enjoined. IAAB has had to “devote significant time responding to members of our community who were subjected to hate speech and intimidation in public places, and/or were otherwise distressed and stigmatized by” the President’s travel bans. Kharrazi Decl. ¶ 7. The Proclamation will also interfere with IAAB’s ability to put on its conferences. As IAAB explains, “At prior conferences, about half of
6

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the invited speakers come from outside the United States, including from Iran. They often bring other members of their organizations or faculty.” Id. ¶ 18. And “there is always an international presence that includes attendees from outside the United States, including Iran.” Id. ¶ 19. The Proclamation will also hurt IAAB’s summer camps, which attract visitors from overseas. Id. ¶ 9. The Proclamation would prevent many of these people from coming to the United States, thereby injuring IAAB by reducing attendance at events for which it invests significant resources to organize and promote. See Hawaii, 859 F.3d at 783 (state is injured by EO-2’s “constraints to recruiting and attracting students and faculty members to the University of Hawai‘i”).
Traceability and Redressability. The remaining requirements for standing are easily satisfied. Plaintiffs’ injuries can be directly traced to the Proclamation. Enjoining the Proclamation would allow the Doe Plaintiffs’ relatives to have their visa applications processed and IAAB to invite speakers and attendees from Iran and other countries to its events. These requirements were not seriously disputed in the EO-2 litigation, and they should not be disputed here. As the Ninth Circuit explained, “While not challenged by the Government, it is also clear that [plaintiff] has established causation and redressability. His injuries are fairly traceable to the Order, satisfying causation, and enjoining EO2 will remove a barrier to reunification and redress that injury, satisfying redressability.” Hawaii, 859 F.3d at 763. The same is true here. II. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief.
Plaintiffs face irreparable harm from the Proclamation. In Hawaii, the Ninth Circuit held that there was irreparable harm based on, among other things, “prolonged separation from family members” and “constraints to recruiting.” 859 F.3d at 782. These harms are irreparable because they “are not compensable with monetary damages.” Id. at 782-83.
Plaintiffs suffer similar irreparable injuries. As in Hawaii, the Doe Plaintiffs face prolonged separation from their family and loved ones. Jane Doe #1 will be forced to choose
7

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between living without her husband in the United States and living with him in a foreign country where they could be expelled for any reason. Jane Doe #1 Decl. ¶ 13. Jane Doe #2 must similarly “choose between my home and my country here in Maryland and the love of my life, the man I want to marry.” Jane Doe #2 Decl. ¶ 7. Jane Doe #3 may never see her youngest brother again. Jane Doe #5, an elderly woman in poor health, may never see her son again. John Doe #5 Decl. ¶¶ 6-7. And John Doe #6 and his wife may never see his wife’s mother and sister again. John Doe #6 Decl. ¶ 6. These injuries are more than sufficient to establish irreparable harm. Indeed, the harm here is substantially worse than in Hawaii. The Executive Orders were set to expire within a few months, but the Proclamation has no expiration date, and so the Doe Plaintiffs will be separated from family members indefinitely.
Like the State in Hawaii, IAAB faces difficulties in “recruiting and attracting” people to its events. 859 F.3d at 782. The Proclamation will interfere with IAAB’s ability to attract leading scholars from Iran and other affected countries to its International Conference on the Iranian Diaspora. It will also hurt IAAB’s summer camps, which attract visitors from countries subject to the Proclamation.
Even without this evidence of concrete harms that will flow from the Proclamation, Plaintiffs could demonstrate irreparable harm based on their likelihood of success on their Establishment Clause claim. As the Fourth Circuit explained, “in the context of an alleged violation of First Amendment rights, a plaintiff’s claimed irreparable harm is inseparably linked to the likelihood of success on the merits.” IRAP II, 857 F.3d at 601 (quotation marks and citation omitted). That is because “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Id. at 602 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). “[B]ecause of the inchoate, one-way nature of Establishment Clause
8

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violations, they create the same type of immediate, irreparable injury as do other types of First

Amendment violations.” Id. (quotation marks and citation omitted). Plaintiffs thus suffer irrepa-

rable harm solely based on the violations of their rights under the Establishment Clause.

CONCLUSION For the foregoing reasons and the reasons stated in the IRAP Plaintiffs’ memorandum of

law, Plaintiffs’ motion for a preliminary injunction should be granted.

Dated: October 6, 2017

Respectfully submitted,

Johnathan Smith Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild Andrew Nellis^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

___________/s/_________ Mark H. Lynch (Bar # 12560) Mark W. Mosier* Herbert L. Fenster** José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606) COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

* Pro hac vice applications pending. ** Pro hac vice application forthcoming. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

9

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Exhibit 1

Case 8:17-cv-02921-TDC Document 26-3 Filed 10/06/17 Page 2 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,

v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Case No. 17-cv-02921-TDC

Defendants.

DECLARATION OF MANA KHARRAZI ON BEHALF OF IRANIAN ALLIANCES ACROSS BORDERS
Pursuant to 28 U.S.C. § 1746, I, Mana Kharrazi, hereby declare and state as follows: 1. I am over the age of eighteen years. I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon personal information provided to me by others, and I am competent to testify thereto. 2. I am the Executive Director of Iranian Alliances Across Borders. IAAB is a 501(c)(3) nonprofit corporation organized under the laws of the state of New York. I have been the Executive Director at IAAB since 2008. Prior to that, beginning in 2006, I served as a program associate and program director. Before that, I participated in IAAB programs as a student. 3. Because of my position as Executive Director, and my prior involvement with the organization, I know the history and background of IAAB as well as the organization’s mission, purposes, and activities. I am also involved in the day-to-day operation of IAAB and am therefore familiar with the organization’s current expenses, revenues, and resources. I oversee

1

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programs and activities sponsored or arranged by IAAB and am involved with publications that IAAB distributes.
4. The mission of IAAB is to strengthen the Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across various borders and multiple communities. IAAB is a diverse organization, open to members of all religious faiths.
5. I am the only paid staff member of IAAB. Along with myself, our work is done by approximately 50-60 unpaid volunteers each year. We host IAAB’s Campus Action Network, a national network comprised of affiliated Iranian-American student groups and representatives, including groups at the University of Maryland College Park, one of the biggest and most active Iranian-American student groups in the nation, and the University of Maryland in Baltimore.
6. We maintain a mailing list of over 2000 individuals, for distribution of our monthly newsletter, and other communications.
7. The travel bans issued in the past year, and the anti-Muslim rhetoric during the campaign, resulted in our organization having to devote significant time responding to members of our community who were subjected to hate speech and intimidation in public places, and/or were otherwise distressed and stigmatized by these events. In response to these reports, we launched the “Reject Hate” campaign to help our members respond to and address targeting and harassment. We worked with parents in our community to provide toolkits for the schools their children attend, presenting positive images of Muslims, Middle Easterners, and South Asians and otherwise guiding parents and educators about how to deal with discriminatory and hateful behavior.
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8. The travel bans also affected our educational programs, and the new version of the ban issued on September 24, 2017, excluding, without any time limitation, all Iranian nationals from immigrating to the United States, and most Iranian nationals from traveling to the United States, is likely to affect those programs in the future.
9. Our programs include overnight camps for high school students (Camp Ayandeh, begun in 2006), and middle school students (Camp Javan, begun in 2012). Although primarily attended by Iranian Americans, we have also had campers from Iran and Europe. Since 2010, Camp Ayandeh has hosted campers from outside the United States every year, until the Summer of 2017—the first year that the United States ordered a ban on travel by Iranian nationals. Two applicants to IAAB’s camps from overseas dropped out after the travel ban was ordered.
10. The camps are run by volunteer counselors. There have been counselors from overseas every year until the Summer of 2017. One counselor from Germany, with Iranian roots, worked at the camp in 2016, but did not come back in 2017.
11. At our camps, our workshops address social and cultural issues that challenge all young people, and those that arise from their membership in the Iranian diaspora community. These efforts are described in the recently published book “The Limits of Whiteness: Iranian Americans and the Everyday Politics of Race” by Neda Maghbouleh.
12. In the Summer of 2017, we spent a considerable amount of time at our camps addressing our campers’ feelings of fear, self-hate, and lowered self-esteem arising specifically from the statements made about Muslims and Iranians made during the election, and the imposition of travel bans on Iranians and nationals of other predominantly Muslim countries.
13. Our youth shared stories of feeling discriminated against and described negative experiences in their schools. I led a session about the current climate, including the travel ban
3

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and the representation of our communities in the media. I supported youth who described personal stories about being called a ‘terrorist’ and having to respond about their identities. I supported young teenage boys with traumatic experiences of being subjected to ridicule and harassment on sports teams, by parents of friends, classmates, and teachers. Some youth described feeling unsafe in their communities, sometimes saying they did not want their classmates to know that they are Iranian American. Some shared stories about being harassed for their facial hair, being mocked for their names, not feeling a sense of self-love because their Iranian identity subjected them to being treated differently. I also supported a young group of volunteer counselors who shared similar experiences in college
14. We maintain ongoing relationships with the young people who attend our camps, and their families. Those relationships continue into college, where our camp alumni often become leaders and participants in Iranian-American student groups. Participants in these IAAB activities and relationships consider each other to be family.
15. We created a national Campus Action Network of college and university IranianAmerican student groups, known as I-CAN. Through those affiliations, we share resources and ideas, collaborate on various events and actions, provide leadership training, and collaborate on programs. Most years we hold an IAAB Student Summit for I-CAN leaders and other interested participants. We are in the process of scheduling that event for the 2017-18 academic year.
16. Like our middle school and high school students, the college and university students that we interact with have experienced sufficient distress and fear as a result of the election rhetoric and the travel bans. Our organization is spending significant time discussing and planning with these student groups how to respond to these disturbing developments.
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17. IAAB periodically holds an International Conference on the Iranian Diaspora where scholars, students, journalists, artists, community leaders and other interested people present papers, participate in panels, and otherwise address issues affecting the Iranian Diaspora community globally. The next conference will take place in on April 21 and 22 at New York University. We are sending out our call for proposals in the coming week or two. If the Proclamation goes into effect, potential participants will significantly be discouraged from applying, and participants who do apply would not be able to obtain visas to attend.
18. At prior conferences, about half the invited speakers come from outside the United States, including from Iran. They often bring other members of their organizations or faculty.
19. At prior conferences, there is always an international presence that includes attendees from outside the United States, including Iran.
20. At prior conferences, we have hosted performers with Iranian national origins from outside the country, including the Iranian rock band, Hypernova.
21. The conference requires substantial advance planning, fundraising, and promotion. We raise money to support travel, and pay honorarium for invited speakers. We assist speakers and other participants with the visa process, providing them any documentation they need to submit their application. Addressing whether the ban applies to individuals outside the country who we wish to invite, or who wish to participate in the conference will require organization resources, and likely require guidance that we do not have the internal capacity to provide. We anticipate that potentially affected individuals will be discouraged from attempting to come to the United States for the conference, in light of the challenges and uncertainty associated.
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Case 8:17-cv-02921-TDC Document 26-3 Filed 10/06/17 Page 7 of 7 I declare under penalty of perjury that the foregoing is true and correct. Executed on October 5, 2017.
______________________________ Mana Kharrazi
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,

v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Case No. 17-cv-02921-TDC

Defendants.

DECLARATION OF JANE DOE #2

Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as Jane

Doe #2, hereby declare and state as follows: 1. I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained

herein. 2.

I am a US citizen born in the United States in 1994. I have lived in Maryland my

entire life. 3.

I went to college at the University of Maryland in College Park and graduated in

2017 with a Bachelor’s degree in International Business and Marketing and Persian Studies. 4. I currently work as a loan processor at NVR Mortgage, and have had this job for

the last two months. 5. About seven years ago, I first met my fiancé on a visit to Iran. We gradually

became closer to each other and started a romantic relationship about a year ago. I visited him in

Iran, and we maintained a long-distance relationship. With my current job, it is very difficult for

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Case 8:17-cv-02921-TDC Document 26-5 Filed 10/06/17 Page 3 of 4
me to get away to go visit him in Iran, and we eagerly await the time that we can fully be together. It is extremely difficult and emotionally draining for us to be apart from each other. I cannot wait until he joins me in the United States and we can get married.
6. In February 2017, I applied for a K visa for my fiancé. The application was received on February 14, which is Valentine’s Day. Things moved relatively quickly after that. On August 4, 2017, he had his interview at the U.S. Embassy in Ankara. We provided dozens of pictures, call logs, a letter detailing our relationship, and paperwork covering other aspects of our relationship. We are now awaiting a final response on his application.
7. I understand that if his visa is not issued by October 18, he will be banned from traveling to the United States by the September 24, 2017 Presidential Proclamation. This will mean that I have to choose between my home and my country here in Maryland and the love of my life, the man I want to marry.
8. We have both been distraught since finding out about the ban. If my fiancé’s visa is not granted, we will be completely devastated. It will be very difficult for me to leave my job and the only home I have known. This will tear us apart, and we are already devastated just thinking about it.
9. I believe this Proclamation targets me and my loved ones because of religion and national origin, and not because of any legitimate reason. I feel dismayed and fearful that my country if enacting official policies that discriminate against me and make me feel that I do not belong here. Because of this Proclamation targeting me and my community, I feel insecure and I fear for my safety and the safety of my loved ones. I feel that I am being treated as an outsider in my own country.
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Case 8:17-cv-02921-TDC Document 26-6 Filed 10/06/17 Page 1 of 4
E[KLELW 4

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,

v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Case No. 17-cv-02921-TDC

Defendants.

DECLARATION OF JANE DOE #3

Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as Jane

Doe #3, hereby declare and state as follows: 1. I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained

herein. 2. 3.

I am a dual citizen of the United States and Iran. I first came to the United States as a student in 1995. I became a US citizen in

2004. 4.

I currently live in Potomac, Maryland with my husband, and we have two adult

twin boys. We first met while I was a student, and were married in August 1995. 5. I am employed as a special education teacher for Montgomery County Public

Schools, where I have worked since 2006. I earned a Master’s degree in Education from George

Washington University in Washington, DC.

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6. After I became a U.S. citizen in 2004, I completed and filed I-130 petitions for my two brothers, mother, and father in October 2004. My oldest brother is now a U.S. citizen; my mother is a U.S. citizen; and my father is a Lawful Permanent Resident.
7. My youngest brother is the only one in our family who is still in Iran awaiting final approval of his pending visa application. The I-130 application was approved in late 2005. Because the waiting process for siblings is very long, my brother had been waiting his turn since that time. In May 2017, we finally received a letter saying that my brother’s application is ready for processing, and that an interview should be scheduled soon. A few months later, they asked us to resubmit one of the documents in support of his application, and we did that in September 2017, at which point we were informed that his interview should be scheduled soon. After many long years of waiting, we were finally approaching the end of the process.
8. I am aware of the September 24, 2017 Presidential Proclamation banning most travelers from Iran. If it goes into full effect on October 18, I understand that my brother’s application will no longer move forward and he will not be issued an immigrant visa. He will be prevented from entering the United States and rejoining his family.
9. The ban on my brother has caused me a great deal of uncertainty, and I have been confused, disheartened, and extremely disappointed about the third iteration of the ban on Muslims and Iranians. I fear that my brother will remain separated from the rest of my family, who all live with me in the United States. He is the only one left in Iran, and we are eagerly awaiting the time when he can come and be reunited with us. I also fear that the Proclamation will result in more hatred and attacks against my community, and I fear for my safety and the safety of my loved ones.
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E[KLELW 5

Case 8:17-cv-02921-TDC Document 26-7 Filed 10/06/17 Page 2 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.

Plaintiffs,

v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as President of the United States; et al.

Defendants.

DECLARATION OF JANE DOE #5

Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as

Jane Doe #5, hereby declare and state as follows: 1. I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained

herein. 2.

I am a Lawful Permanent Resident. My husband and I live in the United States

with my son, who became a US citizen in 2009 and has been living in the United States since

2004. 3.

My husband and I came to the United States in 2010 to join him here. We came in

as immigrants and have lived with him in Maryland ever since. 4. My other son currently remains in Iran. I applied to sponsor him shortly after I

came to the United States, and the I-130 petition was approved in November 2010.

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5. In December 2016, after a long time spent waiting his turn until his visa was ready to be processed, my son received a letter scheduling his interview with the U.S. Embassy in Ankara, Turkey for February 5, 2017. I thought that we were finally at the end of this long process, and would soon be reunited with my son. Before he had his interview, however, President Trump issued the first travel ban and as a result, my son’s interview was canceled. After the travel ban was struck down by the courts, his interview was rescheduled for March 20, 2017. He completed his interview and is now awaiting final approval. If the travel ban goes into full effect on October 18, I understand that my son’s visa will not be issued, and my separation from him will be prolonged even further.
6. My son is now by himself in Iran, and he wants to come join us here in the United States. I also very much want and need him to be here. I am 79 years old, and as a result of several health issues, am now wheelchair-bound. My husband is 90 years old. He has problems with balance and falls if he walks by himself. It is very difficult for my other son to take care of us by himself, and very hard for us to get around or meet our own needs. We desperately need my other son to be here also.
7. Ever since I found out about the Proclamation, I have been extremely anxious, sad, and worried. I am afraid that I will never be able to see my son. I am afraid that he will not be able to come and be with his elderly parents. This causes me great pain and suffering on a daily basis.
8. I also feel personally attacked, targeted, and disparaged by this new Proclamation, which shows hostility to Iranians generally and to Muslims in particular. It is distressing to feel that the country I call home is targeting me and my children. It also makes me fear for my safety and the safety of my sons and others in my community. By targeting us and treating us like a
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 Case 8:17-cv-02921-TDC Document 36 Filed 10/12/17 Page 1 of 49

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION ____________________________________

)

INTERNATIONAL REFUGEE

)

ASSISTANCE PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-00361-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., ) )

Defendants.

)

____________________________________)

)

IRANIAN ALLIANCES ACROSS

)

BORDERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-02921-TDC

)

DONALD J. TRUMP, in his official

)

capacity as President of the United

)

States, et al.,

)

)

Defendants.

)

____________________________________)

)

EBLAL ZAKZOK, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02969-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., ) )

Defendants.

)

____________________________________)

DEFENDANTS’ COMBINED MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS

Case 8:17-cv-02921-TDC Document 36 Filed 10/12/17 Page 2 of 49
TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 4 I. Legal Framework ................................................................................................................ 4 II. Executive Order No. 13,780 ............................................................................................... 4 III. The President’s Proclamation ............................................................................................. 5
A. DHS’s Worldwide Review and Recommendations ................................................ 6 B. The President’s Findings and Suspensions of Entry ............................................... 7 STANDARD OF REVIEW ............................................................................................................ 9 ARGUMENT .................................................................................................................................. 9 I. Plaintiffs’ Challenges to the Proclamation Are Not Justiciable .......................................... 9 A. The Denial of Entry to an Alien Abroad is Reviewable Only for Violation
of a U.S. Citizen’s Own Constitutional Rights ....................................................... 9 1. Plaintiffs’ Statutory Challenges Are Not Reviewable................................. 9 2. Plaintiffs’ Constitutional Claims Are Not Reviewable Because
Plaintiffs Do Not Assert Any Constitutional Rights of Their Own........... 14 B. Plaintiffs Otherwise Fail to Satisfy Article III Requirements ............................... 17 II. Plaintiffs’ Statutory Claims Are Not Likely to Succeed on the Merits ............................. 18 A. The Proclamation Fits Well Within the President’s Broad Constitutional and
Statutory Authority to Suspend Entry of Aliens Abroad....................................... 18 1. The President Has Extremely Broad Discretion to Suspend Entry of
Aliens Abroad ........................................................................................... 19 2. Under Any Standard, the Proclamation is Adequately Justified By
the President’s National Security and Foreign Affairs Judgments............ 22 3. Plaintiffs’ Attempts to Limit the President’s Authority are Incorrect ....... 26 B. The Proclamation Does Not Conflict With the Overall INA Scheme .................. 27
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1. Congressional Amendments to the INA Do Not Limit the President’s Pre-Existing Statutory Authority............................................................... 27
2. The Proclamation Comports with the Provisions Plaintiffs Cite .............. 29 C. The Proclamation Does Not Run Afoul of Section 1152(a)(1)............................. 31
1. Success On This Claim Would Not Support the Requested Injunction .................................................................................................. 31
2. There Is No Conflict Between the Non-Discrimination Provision and the President’s Suspension Authorities .............................................. 32
3. In the Event of a Conflict, the President’s Suspension Authorities Would Prevail............................................................................................ 33
III. The Proclamation Does Not Violate the Establishment Clause ........................................ 35 A. The Proclamation Is Constitutional Under Mandel .............................................. 35 B. The Proclamation is Valid Under Domestic Establishment Clause Precedent ............................................................................................................................... 39
IV. The Remaining Preliminary Injunction Factors Weigh Against Relief ............................ 44 V. A Global Injunction Would Be Inappropriate ................................................................... 45 CONCLUSION............................................................................................................................. 45
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INTRODUCTION Over the past several months, the Department of Homeland Security, in consultation with the Department of State and Director of National Intelligence, conducted a worldwide review of foreign governments’ information-sharing practices and risk factors, evaluated each country according to a set of religion-neutral criteria, and identified countries with inadequate informationsharing practices. The Secretary of State then engaged countries diplomatically to encourage them to improve their performance. The Acting Secretary of Homeland Security reported the results of her review to the President, recommending that the President impose entry restrictions on nationals from eight countries whose information-sharing practices continued to be inadequate or that otherwise presented special risk factors. After reviewing the Acting Secretary’s recommendations, and further consultations within the Executive Branch, the President crafted “country-specific restrictions” that, in his judgment, “would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur.” Pursuant to broad constitutional and statutory authority to suspend or restrict the entry of aliens abroad when he deems it in the Nation’s interest, on September 24, 2017, the President issued a Proclamation describing those restrictions and the particular country-conditions justifying them. See Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats, 82 Fed. Reg. 45,161 (Sept. 27, 2017). Plaintiffs have now shown that, no matter how thorough the Government’s process, they will continue to allege that the President’s actions are motivated by animus. Plaintiffs ask this Court to enjoin the Proclamation worldwide, nullifying a formal national-security and foreignpolicy directive of the President based on the extensive investigations and recommendations of several Cabinet Secretaries. Their request threatens the ability of this or any future President to
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take steps that are necessary to protect the Nation. To support their extraordinary request, Plaintiffs principally rely on the earlier decisions of
this Court and the Fourth Circuit enjoining the temporary entry suspension in Executive Order No. 13,780. But the Supreme Court has now vacated the Fourth Circuit’s judgment and directed that the prior challenge be dismissed as moot. See Trump v. IRAP, No. 16-1436, --- S. Ct. ----, 2017 WL 4518553 (Oct. 10, 2017). Accordingly, this Court is free to reconsider the issues and correct the errors in those preliminary decisions. Moreover, those decisions are inapposite even on their own terms, because the alleged flaws in the prior entry suspension do not apply to the Proclamation here, which was issued after a worldwide review employing neutral criteria.
The Proclamation here is amply justified by the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a)(1). The President determined that, for countries with inadequate information-sharing practices or presenting other special circumstances, it would be detrimental to the Nation’s interests to allow certain foreign nationals of those countries to enter the United States, because “the United States Government lacks sufficient information to assess the risks they pose to the United States,” and because the entry restrictions “are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments[.]” Procl. § 1(h)(i). The President’s determination is consistent with the broad discretion afforded him by §§ 1182(f) and 1185(a)(1). Nor does the President’s determination run afoul of any other Congressional enactment, which establish a minimum set of restrictions that an alien must meet before gaining entry to the country, but do not impliedly repeal the President’s authority to impose additional restrictions when he deems it appropriate pursuant to §§ 1182(f) or 1185(a)(1). Thus, Plaintiffs’ statutory challenges should be rejected.
Likewise, Plaintiffs’ Establishment Clause claim is governed by, and fails under,
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Kleindienst v. Mandel, 408 U.S. 753 (1972), which requires upholding the Executive’s decision to exclude aliens abroad so long as that decision rests on a “facially legitimate and bona fide reason.” Id. at 770. The Proclamation’s entry restrictions rest squarely on national-security and foreignpolicy determinations by the President that are legitimate on their face and supported by extensive findings. Mandel precludes “look[ing] behind” the President’s rationale. Id.
Plaintiffs’ claim also fails without regard to Mandel. The Proclamation has nothing to do with religion on its face or in its operation, and Plaintiffs have not demonstrated that the Proclamation—the product of a review by multiple agencies—was motivated by religious animus. It was based on a thorough, worldwide review and engagement process that resulted in tailored, country-specific restrictions. Plaintiffs’ theory would require this Court to impugn the motives of the numerous Cabinet Secretaries and other government officials who participated in the worldwide review that culminated in the Acting Secretary’s recommendations to the President.
Accordingly, Plaintiffs’ claims fail on the merits. Equally importantly, though, those claims are not justiciable at all, because the Proclamation has not produced final agency action on the visa applications filed by the aliens abroad identified by Plaintiffs, and Plaintiffs’ challenges in any event are foreclosed by the general rule that federal courts may not second-guess the political branches’ decisions to exclude aliens abroad. That principle plainly forecloses review of Plaintiffs’ statutory challenges, because Congress has not authorized review of those claims. And although the Supreme Court has permitted limited review where a U.S. citizen contends that exclusion of an alien violates the citizen’s own constitutional rights, Plaintiffs here do not assert a cognizable violation of their own rights under the Establishment or Equal Protection Clauses. Plaintiffs’ motion for a preliminary injunction should therefore be denied.
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BACKGROUND I. Legal Framework
“The exclusion of aliens is a fundamental act of sovereignty” that both is an aspect of the “legislative power” and also “is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
Under the INA, admission to the United States normally requires a valid visa or other valid travel document. 8 U.S.C. §§ 1181, 1182(a)(7)(A)(i) and (B)(i)(II), 1203. Applying for a visa typically requires an in-person interview and results in a decision by a Department of State consular officer. Id. §§ 1201(a)(1), 1202(h), 1204; 22 C.F.R. §§ 41.102, 42.62. Although a visa generally is necessary for admission, it does not guarantee admission; the alien still must be found admissible upon arriving at a port of entry. 8 U.S.C. §§ 1201(h), 1225(a). Congress has enabled certain nationals of certain countries to seek temporary admission without a visa under the Visa Waiver Program. Id. §§ 1182, 1187.
Building upon the President’s inherent authority to exclude aliens, see Knauff, 338 U.S. at 542, Congress has likewise accorded the President broad discretion to restrict the entry of aliens. Section 1182(f ) of Title 8 authorizes the President to “suspend the entry of all aliens or any class of aliens” “for such period as he shall deem necessary” whenever he finds that such entry “would be detrimental to the interests of the United States.” Section 1185(a)(1) further empowers the President to adopt “reasonable rules, regulations,” “orders,” and “limitations and exceptions” on the entry of aliens. Pursuant to these authorities, President Reagan suspended entry of all Cuban nationals in 1986, and President Carter denied and revoked visas to Iranian nationals in 1979. II. Executive Order No. 13,780
On March 6, 2017, the President issued Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) [hereafter “EO-2”]. Among other things, EO-2 directed the Secretary of Homeland
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Security to conduct a global review to determine whether foreign governments provide adequate information about their nationals seeking U.S. visas. See EO-2 § 2(a). EO-2 directed the Secretary to report his findings to the President, after which nations identified as deficient would have time to alter their practices, prior to the Secretary recommending entry restrictions on nations that remained inadequate or presented other special circumstances. See id. §§ 2(d)-(f).
During that review, EO-2 imposed a temporary, 90-day suspension on the entry of certain foreign nationals from six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—all of which had been identified by Congress or the Department of Homeland Security (DHS) in connection with the Visa Waiver Program as presenting heighted terrorism-related concerns. See id. § 2(c). That 90-day suspension was challenged in multiple courts, and was preliminarily enjoined by this Court and one other district court. See IRAP v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017); Hawaii v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017). Those injunctions were affirmed in relevant part by the respective courts of appeals. See IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam).
The Supreme Court granted certiorari in both cases and partially stayed the injunctions pending its review. Trump v. IRAP, 137 S. Ct. 2080 (2017). After EO-2’s temporary entry suspension expired, the Supreme Court vacated the IRAP injunction as moot. See Trump v. IRAP, 2017 WL 4518553. III. The President’s Proclamation
On September 24, 2017, following completion of the review and engagement processes required by Section 2 of EO-2, the President signed Proclamation No. 9645. The Proclamation was based on a worldwide review of the nation’s vetting procedures, reflects the recommendations of the Acting Secretary of DHS, and was issued in consultation with the Acting Secretary, the Secretary of State, the Secretary of Defense, and the Attorney General. See Procl. § 1(h)(i).
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A. DHS’s Worldwide Review and Recommendations
The Proclamation describes the elaborate review process conducted pursuant to Section 2
of EO-2. First, DHS, in consultation with the Department of State and the Director of National
Intelligence, determined the information needed from foreign governments to enable the United
States to assess its ability to make informed decisions about foreign nationals applying for visas.
That information “baseline” has three components:
(1) identity-management information, to assess “whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports”;
(2) national-security and public-safety information, to determine “whether the country makes available . . . known or suspected terrorist and criminal-history information upon request, whether the country provides passport and nationalidentity document exemplars, and whether the country impedes the United States Government’s receipt of information”; and
(3) a national-security and public-safety risk assessment, including such factors as “whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program . . . that meets all of [the program’s] requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.”1
In conjunction with developing these criteria, DHS, in coordination with the Department
of State, collected data on, and evaluated, every foreign country according to the criteria. Out of
the nearly 200 countries evaluated, the Acting Secretary of DHS identified the information-sharing
practices and risk factors of 16 countries as “inadequate.” See Procl. § 1(e). Another 31 countries
were classified as “at risk” of becoming “inadequate.” See id. These preliminary results were

1 Procl. § 1(c); see also DHS, Fact Sheet: The President’s Proclamation on Enhancing

Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by

Terrorists

or

Other

Public-Safety

Threats

(Sept.

24,

2017),

https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-

capabilities-and-processes.

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submitted to the President on July 9. See id. § 1(c). The Department of State then conducted a 50-day engagement period to encourage all foreign governments to improve their performance. These diplomatic efforts yielded significant gains.2
After the engagement period ended, the Acting Secretary of DHS submitted a report to the President recommending tailored entry restrictions on certain nationals from seven countries (Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen) that continue to be “inadequate” with respect to providing information to the United States and risk factors. See id. § 1(h)(ii). The Acting Secretary also recommended entry restrictions on nationals of Somalia. Although Somalia generally satisfied the information-sharing criteria, the Acting Secretary found that the Somali government’s inability to effectively and consistently cooperate, as well as the terrorist threat that emanates from its territory, present special circumstances warranting limitations on entry. See id. § 1(i). The Acting Secretary also determined that an eighth country (Iraq) did not meet the United States’ information-sharing requirements, but in lieu of entry restrictions, recommended additional scrutiny of Iraqi nationals seeking entry because of the United States’ close cooperative relationship with Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combatting ISIS. See id. § 1(g).
B. The President’s Findings and Suspensions of Entry On September 24, 2017, after considering the Acting Secretary’s recommendations and “consult[ing] with appropriate Assistants to the President and members of the Cabinet,” Procl. § 1(h)(i), the President issued the Proclamation pursuant to his inherent and statutory authority, including 8 U.S.C. §§ 1182(f) and 1185(a)(1). The President considered “several factors, including each country’s capacity, ability, and willingness to cooperate with our identity-management and
2 For example, 29 countries produced travel-document exemplars to combat fraud, and 11 countries agreed to share information on known or suspected terrorists. See Procl. § 1(f).
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information-sharing policies and each country’s risk factors,” as well as “foreign policy, national security, and counterterrorism goals.” Id. With those factors and goals in mind, the President sought to “craft[] those country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur.” Id.
Accordingly, for countries that refuse to cooperate regularly with the United States (Iran, North Korea, and Syria), the Proclamation suspends entry of nationals seeking both immigrant and nonimmigrant visas; all classes of nonimmigrant visas are suspended for North Korea and Syria, and all are suspended for Iran except student (F and M) and exchange visitor (J) visas. See id. §§ 2(b)(ii), (d)(ii), (e)(ii). For countries that are valuable counter-terrorism partners but nonetheless have information-sharing deficiencies (Chad, Libya, and Yemen), the Proclamation suspends entry only of persons seeking immigrant visas and business, tourist, and business/tourist nonimmigrant (B-1, B-2, B-1/B-2) visas. Id. §§ 2(a)(ii), (c)(ii), (g)(ii). For Somalia, the Proclamation suspends entry of persons seeking immigrant visas, and requires additional scrutiny of nationals seeking nonimmigrant visas. Id. § 2(h)(ii). And for Venezuela, the Proclamation suspends entry of “officials of government agencies of Venezuela involved in screening and vetting procedures” and “their immediate family members” on nonimmigrant business and tourist visas. Id. § 2(f)(ii). For each country, the Proclamation summarizes some of the particular country conditions and inadequacies warranting the restrictions. See generally id. § 2. The Proclamation also provides for case-by-case waivers to the entry restrictions. Id. § 3(c).
The restrictions imposed on each country are “to encourage cooperation” and to “protect the United States until such time as improvements occur.” Id. § 1(h)(i); see also Procl. pmbl. To that end, the Proclamation requires an ongoing review process to determine whether the limitations
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imposed should be continued, terminated, modified, or supplemented. Id. § 4. If at any time the Secretary of DHS determines that certain restrictions “are no longer necessary for the security or welfare of the United States, the Secretary . . . may recommend to the President the removal or modification of any or all such restrictions and limitations.” Id. § 4(c).
The suspensions on entry were effective immediately for foreign nationals previously restricted under EO-2 and the Supreme Court’s stay order. Id. § 7(a). The entry restrictions will be effective at 12:01 a.m. EDT on October 18, 2017 for all other covered persons. Id. § 7(b).
STANDARD OF REVIEW Plaintiffs “must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that [the relief] is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
ARGUMENT I. Plaintiffs’ Challenges to the Proclamation Are Not Justiciable
It is a fundamental separation-of-powers principle that the political branches’ decisions to exclude aliens abroad generally are not judicially reviewable. That principle bars any review of Plaintiffs’ statutory claims. The Supreme Court has permitted limited review only when a U.S. citizen asserts a claim that exclusion of an alien abroad infringes the citizen’s own constitutional rights. Here, although Plaintiffs invoke the Establishment and Equal Protection Clauses, they assert no cognizable violation of their own constitutional rights. Thus, Plaintiffs’ claims are not reviewable. Plaintiffs also do not otherwise meet Article III requirements.
A. The Denial of Entry to an Alien Abroad is Reviewable Only for Violation of a U.S. Citizen’s Own Constitutional Rights 1. Plaintiffs’ Statutory Challenges Are Not Reviewable
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a. The Supreme Court “ha[s] long recognized the power to . . . exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). “[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. Absent such affirmative authorization, however, judicial review of exclusion of aliens outside the United States is ordinarily unavailable.
Courts have distilled from these fundamental and longstanding principles of nonreviewability the rule that the denial or revocation of a visa for an alien abroad “is not subject to judicial review . . . unless Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). Courts have referred to that rule as “the doctrine of consular nonreviewability,” id., but the short-hand label merely reflects the context in which the principle most often arises—i.e., challenges to decisions by consular officers adjudicating visa applications. The principle underlying that doctrine applies regardless of the manner in which the Executive denies entry to an alien abroad. Contrary to Plaintiffs’ position, see IRAP Br. at 23, it would make no sense to bar review of consular officers’ case-specific determinations while permitting review of decisions by the Head of the Executive Branch that are grounded in sensitive foreign-affairs and national-security determinations. See Saavedra Bruno, 197 F.3d at 1159-60.
Congress has declined to provide for judicial review of decisions to exclude aliens abroad. It has not authorized any judicial review of visa denials—even by the alien affected, much less by third parties like Plaintiffs here. E.g., 6 U.S.C. § 236(f ); see id. § 236(b)(1), (c)(1). Congress also has forbidden “judicial review” of visa revocations (subject to a narrow exception inapplicable to aliens abroad). 8 U.S.C. § 1201(i). This longstanding bar on judicial review of the political
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branches’ exclusion of aliens abroad forecloses Plaintiffs’ statutory challenges to the Proclamation. b. Plaintiffs erroneously assert that Congress has authorized judicial review of their
statutory claims under the Administrative Procedure Act (APA). See IRAP Br. at 23. The APA does not apply “to the extent that . . . statutes preclude judicial review,” 5 U.S.C. § 701(a)(1), which “is determined not only from [a statute’s] express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). Moreover, § 702 itself contains a “qualifying clause” that preserves “other limitations on judicial review” that predated the APA. Saavedra Bruno, 197 F.3d at 1158 (quoting 5 U.S.C. § 702(1)). Here, the conclusion is “unmistakable” from history that “the immigration laws ‘preclude judicial review’ of []consular visa decisions.” Id. at 1160. At a minimum, the general rule of “nonreviewability . . . represents one of the ‘limitations on judicial review’ unaffected by § 702’s opening clause[.]” Id.
Indeed, when the Supreme Court held that aliens physically present in the United States— but not aliens abroad—could seek review of their exclusion orders under the APA, see Brownell v. Tom We Shung, 352 U.S. 180, 184-86 (1956), Congress responded by abrogating that ruling. See Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 651-653; Saavedra Bruno, 197 F.3d at 1157-62 (recounting history). The House Report accompanying the abrogating statute explained that APA suits would “give recognition to a fallacious doctrine that an alien has a ‘right’ to enter this country which he may litigate in the courts of the United States against the U.S. Government as a defendant.” H.R. Rep. No. 1086, 87th Cong., 1st Sess., at 33 (1961). Because an alien present in the United States cannot invoke the APA to obtain review—as Congress prescribed in 1961— then a fortiori, neither can aliens abroad or U.S. citizens acting at their behest. And given that Congress generally foreclosed “judicial review” of visa revocations, 8 U.S.C. § 1201(i), it is
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implausible that Congress would allow review of visa denials in the first instance. c. Plaintiffs assert that Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), in which
the Court reviewed a challenge by aliens abroad to measures returning them to their home country, shows that Plaintiffs’ statutory claims are reviewable. See IRAP Br. at 22. In that case, however, the Court did not address reviewability because it rejected the plaintiffs’ claims on the merits. Moreover, the aliens in Sale alleged that the INA and a treaty gave them a judicially enforceable right. Here, Plaintiffs have no such colorable claim, as discussed below.3
d. Even if the general rule of nonreviewability did not foreclose judicial review of Plaintiffs’ statutory claims, review still would be unavailable for three reasons. First, the APA provides for judicial review only of “final agency action.” 5 U.S.C. § 704. The President’s Proclamation is not “agency action” at all, Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992); Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., 801 F. Supp. 2d 383, 40304 (D. Md. 2011), aff’d, 698 F.3d 171 (4th Cir. 2012), and there has been no final decision denying a visa based on the Proclamation to any of the aliens abroad identified by Plaintiffs. In general, they appear either to be awaiting a visa interview, or have had an interview and not been issued a visa, presumably meaning that the visa has been refused subject to further review for reasons
3 Plaintiffs also incorrectly argue that Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986), holds that statutory challenges to the exclusion of aliens abroad can be considered where constitutional claims also are asserted, due to the canon of constitutional avoidance. IRAP Br. at 24. But, as the D.C. Circuit subsequently recognized in Saavedra Bruno, Abourezk’s reviewability holding critically relied on a statute that has since been amended to eliminate such review. See Saavedra Bruno 197 F.3d at 1162, 1164. Moreover, the principle that courts should “‘not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of,’” applies only if a non-constitutional ground is “ ‘present.’” Pearson v. Callahan, 555 U.S. 223, 241 (2009). The constitutionalavoidance principle does not rehabilitate unreviewable statutory claims. See Doe, 486 U.S. at 600605 (constitutional claims reviewable but statutory claims not reviewable under APA).
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unrelated to the Proclamation. See 22 C.F.R. §§ 41.121(a), 42.81(a); see also IRAP Br. at 9; IAAB Br. at 2-4; Zakzok Br. at 2-7. Those aliens, moreover, if otherwise found eligible for a visa, will have an opportunity to seek a waiver as provided by the Proclamation. Even if judicial review were ultimately available, therefore, it would not lie until a consular officer has made a final decision to deny a visa, which could be based on a ground unrelated to the Proclamation. Even in Mandel and Kerry v. Din, 135 S. Ct. 2128 (2015), courts did not consider the constitutional claims until after the aliens had been denied visas.4
Second, Plaintiffs lack a statutory right to enforce. Nothing in the INA gives Plaintiffs a direct right to judicial review. See, e.g., Abourezk, 785 F.2d at 1050; Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1505 (11th Cir. 1992). And the APA’s “general cause of action” exists only for “persons ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ ” Community Nutrition Inst., 467 U.S. at 345. None of the statutes here provides Plaintiffs any rights to invoke. The provisions empowering the President to restrict entry of aliens, 8 U.S.C. §§ 1182(f ), 1185(a)(1), and prohibiting nationality-based discrimination in the issuance of immigrant visas, id. § 1152(a)(1)(A), do not confer any rights on third parties like Plaintiffs here— i.e., U.S. organizations or persons seeking entry of aliens abroad.5
Finally, the APA also does not apply “to the extent that . . . agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Here, the relevant statutes commit these matters
4 Contrary to the Zakzok plaintiffs’ assumptions, see Zakzok Br. at 8, nothing in the Proclamation will suspend processing or consideration of I-130 petitions even after October 18.
5 Even when the INA permits a U.S. person to file a petition for a foreign family member’s classification as a relative for immigrant status, any interest the U.S. person has “terminate[s]” “[w]hen [his] petition [i]s granted.” Saavedra Bruno, 197 F.3d at 1164. Nothing in the INA authorizes a sponsoring citizen to challenge the later denial of a visa to his relative.
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to the President’s unreviewable discretion. See Part II.A.1, infra.6
2. Plaintiffs’ Constitutional Claims Are Not Reviewable Because Plaintiffs Do Not Assert Any Constitutional Rights of Their Own
The Supreme Court has twice engaged in limited judicial review of constitutional claims, but only when a U.S. citizen contended that the exclusion of an alien abroad violated the citizen’s own constitutional rights. In Mandel, the Court reviewed a claim that the denial of a waiver of visa-ineligibility to a Belgian national violated U.S. citizens’ own First Amendment right to receive information. 408 U.S. at 756-59, 762-70. As the Court explained, the alien himself could not seek review because he “had no constitutional right of entry to this country.” Id. at 762. The Court addressed (and rejected on the merits) only the claim of U.S. citizens that the alien’s exclusion violated their own constitutional rights. Id. at 770. And in Din, the Court considered but denied a claim by a U.S. citizen that the refusal of a visa to her husband violated her own due-process rights. 135 S. Ct. at 2131 (opinion of Scalia, J.); id. at 2139 (Kennedy, J., concurring in the judgment). Limited review was available in each case only because the plaintiffs asserted violations of their own constitutional rights as U.S. citizens.
Plaintiffs allege that they are injured by the Proclamation because it will prevent or delay their family members’ entry into the United States and thereby prolong their separation. See IRAP Br. 9-10; IAAB Br. 4-5; Zakzok Br. 8. But putting aside that no visa has yet been denied based on the Proclamation and this claim is therefore not ripe, that claimed injury is not cognizable in any event because it does not stem from an alleged infringement of Plaintiffs’ own constitutional rights.
6 Plaintiffs briefly assert that judicial review is available through equity. IRAP Br. at 23 (citing Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384-85 (2015)). But the “judgemade remedy” that Armstrong addressed does not permit Plaintiffs to sidestep “express and implied statutory limitations” on judicial review, such as under the APA. 135 S. Ct. at 1384-85. A contrary rule would eviscerate the APA’s limits on review. Indeed, a suit for equitable relief challenging agency action is specifically contemplated as one under the APA itself, 5 U.S.C. § 703, not outside of it. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).
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In McGowan v. Maryland, 366 U.S. 420 (1961), the Supreme Court held that individuals who are indirectly injured by alleged religious discrimination against others generally may not sue, because they have not suffered violations of their own. Id. at 429-30. The Court concluded that the plaintiffs, employees of a store subject to a State’s Sunday-closing law, lacked standing to challenge that law on free-exercise grounds because they “d[id] not allege any infringement of their own religious freedoms.” Id. at 429. Likewise here, in challenging the application of the Proclamation to family members (or to family members of the organizational plaintiffs’ clients), Plaintiffs are not asserting violations of their own constitutional rights. They instead are seeking to advance the interests of third parties whose entry is suspended and who themselves have no constitutional rights. Plaintiffs thus cannot seek the limited review afforded in Mandel and Din.7
Plaintiffs also claim that the Proclamation injures them by sending a “message” that condemns their Islamic faith. See IRAP Br. at 8-9; IAAB Br. at 5-6; Zakzok Br. at 8. This “message” injury is not cognizable either because it likewise does not result from a violation of Plaintiffs’ own constitutional rights. The Supreme Court has “ma[de] clear” that “the stigmatizing injury often caused by racial [or other invidious] discrimination . . . accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.” Allen v. Wright, 468 U.S. 737, 755 (1984). The same rule applies to Establishment Clause claims: “the psychological consequence presumably produced by observation of conduct with which one disagrees” is not the type of “personal injury” that supports standing to sue, “even
7 McGowan held that the plaintiffs could assert an Establishment Clause challenge to the state law only because they suffered “direct . . . injury, allegedly due to the imposition on them of the tenets of the Christian religion”: they were subjected to (indeed, prosecuted under) a Sundayclosing law, which regulated their own conduct. 366 U.S. at 422, 430-31; see Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 583 n.1, 585-86 (1961) (reviewing challenge to Sunday-closing law where business sought to prevent application of the law to business itself). That contrasts with the indirect injury from alleged discrimination here against aliens abroad.
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though the disagreement is phrased in [Establishment Clause] terms.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 85-86 (1982).
To be sure, a plaintiff may suffer a “spiritual” injury from the violation of his own Establishment Clause rights where he himself has been “subjected to unwelcome religious exercises” or “forced to assume special burdens to avoid them.” Valley Forge, 454 U.S. at 486487 n.22. But neither is true here. The Proclamation does not expose Plaintiffs to a religious message: it says nothing about religion, and does not subject them to any religious exercise. And the Proclamation applies only to certain aliens abroad and is not targeted at Plaintiffs.
The D.C. Circuit correctly has rejected the notion that a putative Establishment Clause plaintiff may “re-characterize[]” an abstract injury flowing from “government action” directed against others as a personal injury from “a governmental message [concerning] religion” directed at the plaintiff. In re Navy Chaplaincy, 534 F.3d 756, 764 (2008) (Kavanaugh, J.), cert. denied, 556 U.S. 1167 (2009). If that were permissible, the D.C. Circuit explained, it would “eviscerate well-settled standing limitations.” Id. The challengers in Valley Forge and other cases “could have obtained standing to sue simply by targeting not the government’s action, but rather the government’s alleged ‘message’ of religious preference communicated through that action.” Id. Plaintiffs’ theory that a neutral regulation of conduct can be recast as sending an implicit religious message would render Valley Forge’s rule an empty pleading requirement.
Indeed, even the Fourth Circuit declined to hold that the IRAP plaintiffs’ “message” injury was sufficient to support their Establishment Clause claim, instead relying on the combination of EO-2’s purported message and its adverse effect on one plaintiff in delaying the entry of his spouse. See IRAP, 857 F.3d at 583-86 & n.11. But again, the Fourth Circuit erred because it confused the question whether an individual has suffered an injury-in-fact from an alleged violation of the
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Establishment Clause with the question whether that violation was of the individual’s own Establishment Clause rights. See id. at 586. The Supreme Court has never conflated the two. Regardless of injury-in-fact, a plaintiff still must allege a violation of his own constitutional rights to invoke the limited review afforded by Mandel and Din. Because Plaintiffs have not done so, their constitutional claims are not reviewable.
B. Plaintiffs Otherwise Fail to Satisfy Article III Requirements 1. Even if Plaintiffs’ claims are reviewable, they are premature. If any plaintiff’s relative is denied both a visa and a waiver, then that plaintiff can bring suit and the Court can consider the challenge in a concrete dispute. See Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). Two organizational plaintiffs—MESA and IAAB—claim injury associated with the Proclamation’s alleged interference with their conferences featuring international students and scholars. See IRAP Br. at 10 (MESA); IAAB Br. at 6 (IAAB). But neither MESA nor IAAB identifies any specific scholar or student who has concrete plans to attend an event but would be prohibited from doing so by the Proclamation. See Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Plaintiffs also make no effort to explain how their conferences will be harmed notwithstanding the fact that the entry of Iranian nationals on student (F and M) and exchange visitor (J) visas, including visas for short-term scholars, has not been suspended. See generally 22 C.F.R. § 62.21. As it stands now, none of the individual or organizational plaintiffs has adequately established claims that satisfy Article III’s requirements for review. 2. The organizational plaintiffs also claim injury based on alleged diversion of resources in response to the Proclamation. See IRAP Br. at 10 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)). But Havens Realty involved a narrow type of injury, in which the plaintiff
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organization itself had a statutory right to truthful housing information, see 455 U.S. at 373, and the defendants’ “racially discriminatory steering practices” made it impossible for the organization to fulfill its mission. Id. at 379. By its own terms, Havens Realty does not provide Article III injury-in-fact any time there is “a setback to the organization’s abstract social interests[.]” Id.
Here, the organizations’ alleged harms—diversion of resources “to counsel clients and respond to questions” about the Proclamation, and individuals from the affected countries no longer seeking the organization’s “immigration services,” IRAP Br. at 10—are exactly the type of abstract injuries that do not support standing under Havens Realty. See Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012) (rejecting standing for “an organization that decides to spend its money on educating members, responding to member inquiries, or undertaking litigation in response to legislation”). And an entity that provides legal services to aliens and other clients is not within the zone of interests of the immigration statutes. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); Air Courier Conference of Am. v. American Postal Workers Union, AFL-CIO, 498 U.S. 517, 524-525 (1991).
3. Finally, the plaintiff organizations claim third-party standing to represent the interests of their clients. See IRAP Br. at 10. As Plaintiffs note, however, third-party standing requires both the third party and the litigant itself to have suffered an injury in fact. Id. (citing Powers v. Ohio, 499 U.S. 400, 410-11 (1991)). Because the organizations have not been injured and they have not identified any client with an Article III injury, the organizations also lack third-party standing. II. Plaintiffs’ Statutory Claims Are Not Likely to Succeed on the Merits
A. The Proclamation Fits Well Within the President’s Broad Constitutional and Statutory Authority to Suspend Entry of Aliens Abroad
The President’s Proclamation was issued pursuant to his Article II constitutional authority, and the broad statutory authority vested in him by 8 U.S.C. §§ 1182(f) and 1185(a)(1). The plain
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text of those statutes confirms the expansive discretion afforded to the President, and historical
practice likewise confirms that the President need not offer detailed justifications for his entry
suspensions. Judicial review of the President’s determinations would therefore be inappropriate.
Regardless, the Proclamation here satisfies any standard that could plausibly apply, including the
standard erroneously adopted by the Ninth Circuit in Hawaii.
1. The President Has Extremely Broad Discretion to Suspend Entry of Aliens Abroad
a. As relevant here, Section 1182(f) provides the following:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). By its terms, this provision grants the President broad authority and confirms
his discretion at every turn. Indeed, at least four courts of appeals have recognized that § 1182(f)
provides the President with broad power to suspend the entry of aliens. See Abourezk, 785 F.2d
at 1049 n.2; Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992); Allende v.
Shultz, 845 F.2d 1111, 1117-1118 (1st Cir. 1988); Mow Sun Wong v. Campbell, 626 F.2d 739, 744
n.9 (9th Cir. 1980). The Supreme Court itself has deemed it “perfectly clear that [Section] 1182(f )
. . . grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.” Sale, 509 U.S. at 187.8
8 Notably, when the Immigration and Nationality Act of 1952 was being drafted and debated, opponents criticized § 1182(f ) as “giv[ing] the President the power to suspend all immigration whenever he feels it is in the national interest to do so,” 98 Cong. Rec. 4249 (1952) (letter from Rhoads Murphey, Friends Comm. on National Legislation), and as a “very, very broad provision,” id. at 4304-4305, 4423, 5114 (statements of Reps. Celler and Multer and Sen. Lehman); see also S. Rep. No. 1137, 82d Cong., 2d Sess. Pt. 2, at 4 (1952) (minority views). The legislators supporting the provision did not disagree or suggest otherwise. See S. Rep. No. 1137, 82d Cong., 2d Sess., at 14 (1952); H. Rep. No. 1365, 82d Cong., 2d Sess., at 53 (1952).
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In addition to § 1182(f), 8 U.S.C. § 1185(a) further provides: Unless otherwise ordered by the President, it shall be unlawful . . . for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe[.] 8 U.S.C. § 1185(a)(1). This statutory text likewise confirms the breadth of the President’s authority. This section does not require any predicate findings whatsoever, but simply gives the President the authority to restrict entry to the United States according to “such limitations and exceptions as the President may prescribe.” Id.; see also Haig v. Agee, 453 U.S. 280, 297 (1981) (construing similar language in §1185(b) as “le[aving] the power to make exceptions exclusively in the hands of the Executive”); Allende, 845 F.2d at 1118 & n.13.9 b. Based on those statutes’ plain text, they provide no basis for judicial second-guessing of the President’s determinations about what restrictions to “prescribe” or what restrictions are necessary to avoid “detriment[] to the interests of the United States.” Congress specifically committed those matters to the President’s judgment and discretion. Indeed, because the statutes “fairly exude[] deference to the [President]” and “appear[] . . . to foreclose the application of any meaningful judicial standard of review,” it would be inappropriate for this Court to second-guess the nature of the President’s restrictions or their basis. Webster v. Doe, 486 U.S. 592, 600 (1988); see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (“The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country
9 The history of § 1185(a) also confirms the expansive discretion provided to the President. It originated in 1918 as a wartime measure authorizing restrictions “if the President shall find that the public safety requires” them. 40 Stat. 559 (1918). In 1978, Congress broadened the statute by removing the wartime requirement, and by removing any predicate finding from the statute. See Pub. L. No. 95-426, sec. 707(a), 92 Stat. 963, 992-93 (1978).
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by focusing on that country’s nationals—and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.”) [hereafter AAADC]. Thus, the President’s determinations are “not subject to review,” United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940), and holding otherwise could severely limit the Executive Branch’s ability to respond quickly to urgent threats or international crises.10
c. Historical practice likewise confirms the breadth of and deference owed to the President’s authority. For decades Presidents have restricted entry pursuant to §§ 1182(f) and 1185(a)(1) without detailed public justifications or findings; some have discussed the President’s rationale in one or two sentences that broadly declare the Nation’s interests.11 Indeed, Executive Order No. 12,807—the Presidential action at issue in Sale—contained only a single sentence justifying its measures. See Exec. Order No. 12,807, pmbl. pt. 4 (1992) (“There continues to be a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally.”). But the Supreme Court expressed no concerns about the adequacy of that finding, and instead remarked on the “ample power” given to the President, noting that “[w]hether the President’s chosen method” made sense from a policy perspective was “irrelevant to the scope of his authority” under the statute. Sale, 509 U.S. at 187-88.
Similarly, in 1979 when President Carter invoked § 1185(a)(1) to restrict Iranian nationals, the Executive Order made no findings whatsoever and delegated the authority to prescribe
10 Plaintiffs assert that § 1185(a)(1) “requires that any conditions on entry be ‘reasonable,’” IRAP Br. at 14 n.7. But the word “reasonable” does not appear in the operative grant of authority in that subsection—“subject to such limitations and exceptions as the President may prescribe”— and, regardless, § 1182(f) does not even arguably contain such a requirement. In any event, the Proclamation’s conditions are plainly reasonable, as explained infra in Part II.A.2.
11 See, e.g., Proclamation No. 8693 (July 27, 2011); Proclamation No. 8342 (Jan. 22, 2009); Proclamation No. 6958 (Nov. 26, 1996); Proclamation No. 5887 (Oct. 26, 1988); Proclamation No. 5829 (June 14, 1988).
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restrictions to lower Executive Branch officials. See Exec. Order No. 12,172, § 1-101 (Nov. 26, 1979). Courts saw no impediment to upholding those actions, despite the complete absence of Presidential findings regarding the necessity of any particular restrictions. See Nademi v. INS, 679 F.2d 811, 813-14 (10th Cir. 1982); Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir. 1980).
2. Under Any Standard, the Proclamation is Adequately Justified By the President’s National Security and Foreign Affairs Judgments
a. Even assuming some limited form of judicial review were appropriate, the Proclamation here would readily be sustained. The President provided far more detail and explanation for his findings than exists in other Presidential suspensions under §§ 1182(f) or 1185(a). Specifically, the President imposed the entry restrictions after reviewing the recommendations of the Acting Secretary of DHS, and her recommendations were created following a worldwide review that evaluated every country according to neutral criteria. The Acting Secretary recommended entry restrictions on eight countries, each of which was identified as “inadequate” in its informationsharing practices or as presenting other special circumstances. See Procl. §§ 1(c)-(g), (i). Moreover, the entry restrictions for each country are tailored to the country’s particular circumstances and conditions. See id. §§ 1(h)(1), 2(a)-(h).
The President’s entry restrictions serve two purposes. First, the restrictions are “necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States.” Id. § 1(h)(i); see also id. § 1(a)-(b) (discussing the importance of foreign countries’ information-sharing to the overall security vetting process). Second, the restrictions place pressure on foreign governments “to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.” Id. § 1(h). The utility of the entry restrictions as a foreign-policy tool is confirmed by the history of
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the Proclamation’s development—during the diplomatic engagement period, the prospect of entry restrictions yielded significant improvements in foreign countries’ information-sharing practices. Id. §§ 1(e)-(g). Iraq similarly improved its information-sharing following the January 27, 2017 Executive Order, and thus was removed from EO-2’s entry suspension. See EO-2 § 1(g). The Proclamation amply survives review in light of these dual purposes of security and foreignrelations, the latter of which is an independent rationale that Plaintiffs wholly ignore.
b. Plaintiffs argue that the Proclamation fails for the same reasons EO-2 failed before the Ninth Circuit in Hawaii and before Judge Keenan in IRAP. See IRAP Br. at 17-19 (citing Hawaii, 859 F.3d at 770-74; IRAP, 857 F.3d at 609-11 (Keenan, J., concurring)). But the Proclamation would indeed satisfy even the standards (erroneously) applied in those opinions.
First, the Ninth Circuit held that EO-2 made “no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” Hawaii, 859 F.3d at 772 (citing IRAP, 857 F.3d at 610 (Keenan, J., concurring)). But the Proclamation here contains such findings. Regarding security threats, the Proclamation explains that “[s]creening and vetting protocols” play “a critical role” in protecting United States citizens “from terrorist attacks and other public-safety threats,” Procl. § 1(a); that “[i]nformation-sharing and identitymanagement protocols and practices of foreign governments are important for the effectiveness of th[os]e screening and vetting protocols,” id. § 1(b); that each of the eight countries was determined to have “inadequate” practices under DHS’s baseline criteria or to present other special circumstances, id. § 1(g); and therefore the Proclamation’s restrictions are “necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States,” id. § 1(h)(i). These findings necessarily apply on the basis of nationality, because it is the inadequacy of the foreign
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governments’ practices that creates the risk inherent in those persons’ entry. See id. § 1(b). Similarly, with respect to foreign relations, the Proclamation explains that the entry
restrictions are intended to “elicit improved identity-management and information-sharing protocols and practices from foreign governments” going forward. Procl. § 1(h)(i); see id. § 1(b). When trying to influence the behavior of a foreign government, it makes eminent sense to distinguish, at least in part, on the basis of nationality. The Ninth Circuit itself acknowledged the rationality of distinguishing among “classes of aliens on the basis of nationality” when necessary “as retaliatory diplomatic measures responsive to government conduct directed at the United States.” Hawaii, 859 F.3d at 772 n.13. And the Fourth Circuit has similarly upheld nationalitybased restrictions in such circumstances. See Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981) (upholding restrictions against Iranian nationals because “[t]he United States is not bound to treat the nationals of unfriendly powers with the same courtesy and consideration it extends to nationals of friendly powers”); see also, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979); cf. Harisiades v. Shaughnessy, 342 U.S. 580, 585-88 (1952). Thus, the Proclamation contains ample findings justifying restrictions on the basis of nationality.12
Second, the Ninth Circuit faulted EO-2’s use of nationality because it was over-inclusive, suspending entry even for “nationals without significant ties to the six designated countries[.]” Hawaii, 859 F.3d at 773. As the Proclamation explains, however, “the “practices of foreign
12 The Ninth Circuit also faulted EO-2 because it did not “tie these nationals” to “terrorist organizations,” “identify these nationals as contributors to active conflict,” or show a “link between an individual’s nationality and their propensity to commit terrorism.” Hawaii, 859 F.3d at 772. To the extent the Ninth Circuit was implying that the President must make an individualized risk determination as to each particular national excluded, that would plainly conflict with the statutes here, which permit the President to make his determinations on a categorical basis. See 8 U.S.C. § 1182(f) (authorizing the President to “suspend the entry of all aliens or any class of aliens”), § 1185(a)(1) (prohibiting “any alien” from entering except pursuant to “such limitations and exceptions as the President may prescribe”) (emphases added).
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governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States,” because the governments “manage the identity and travel documents of their nationals,” and “also control the circumstances under which they provide information about their nationals to other governments, including information about known or suspected terrorists and criminal-history information.” Procl. § 1(b). Those risks—regarding adequate information-sharing practices and identity-management protocols—apply regardless of the degree of a foreign national’s connection to his or her country of citizenship.
Third, the Ninth Circuit noted that EO-2 did not “make[] any finding that the current screening processes are inadequate.” Hawaii, 859 F.3d at 773; see also IRAP, 859 F.3d at 611 (Keenan, J., concurring). But the Proclamation expressly contains such a finding; the Acting Secretary’s worldwide review was designed “to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country . . . in order to determine that the individual is not a security or public-safety threat,” Procl. § 1(c), and after being evaluated under that standard each of the eight countries here was found to have inadequate information-sharing practices or to present other particular risks, id. §§ 1(g), (i). Thus, the President (and Acting Secretary) indeed found that current procedures are inadequate with respect to the eight countries—i.e., the United States does not have enough information under current procedures “to determine that the individual is not a security or publicsafety threat,” or to “assess the risks they pose to the United States[.]” Id. § 1(c), (h)(i); see also Procl. pmbl. Furthermore, the President found that the status quo was inadequate to encourage greater cooperation from the eight nations. See id. § 1(h)(i) (“These restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments[.]” (emphasis added)). Thus, the President found the current
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procedures to be inadequate for purposes of vetting nationals from these eight countries and encouraging greater cooperation from these eight countries’ governments.13
Fourth and finally, Judge Keenan faulted EO-2’s temporary suspension because it was issued prior to DHS completing its review of whether foreign nationals’ entry would harm the United States. See 857 F.3d at 611. Of course, the Acting Secretary’s comprehensive review has now been completed, and the results of that review are the foundation for the Proclamation’s entry restrictions. See Procl. §§ 1(c)-(h). The completion of that review is itself a “changed circumstance” justifying imposition of the Proclamation’s tailored restrictions. IRAP Br. at 17.
In sum, because the Proclamation thoroughly explains its findings and the bases for its conclusions, it should be upheld under any standard of review—including under the type of scrutiny employed by the Ninth Circuit and by Judge Keenan.
3. Plaintiffs’ Attempts to Limit the President’s Authority are Incorrect Finally, Plaintiffs suggest two ways in which the President’s statutory authority should be limited such that (in their view) the Proclamation is invalid. Neither argument is persuasive. a. Plaintiffs first suggest that the President’s authority under §§ 1182(f) and 1185(a) should be construed narrowly in light of the non-delegation doctrine. See IRAP Br. at 12-13. But this argument is squarely foreclosed by Knauff, which rejected a non-delegation challenge to the predecessor version of § 1185(a)(1) because the exclusion of aliens also “implement[s] an inherent executive power.” 338 U.S. at 542. b. Plaintiffs also argue that §§ 1182(f) and 1185(a) may be used only to respond to “a
13 Plaintiffs fault the Proclamation for not citing “a single vetting error of any kind for the banned countries[.]” IRAP Br. at 17. But this retrospective standard—requiring a past mistake in order to justify a prospective change in policy—ignores that national-security judgments are (and must be) predictive and preventive. Cf. Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988). Contrary to Plaintiffs’ suggestion, the President need not await a tragic event to act prophylactically.
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diplomatic event Congress did not and could not practicably address,” or “a threat to U.S. interests to which Congress ha[s] not already responded.” IRAP Br. at 13. But this limitation finds no basis in the statutes’ text, history, or practice. Plaintiffs offer two examples as support, but neither helps them. First, Plaintiffs rely on President Reagan’s suspension of Cuban immigrants in August 1986. See Proclamation No. 5517 (Aug. 26, 1986). But that Proclamation was issued in response to an event fifteen months earlier, in May 1985. See id., pmbl. Thus, the Proclamation can hardly be described as a response to “a diplomatic event Congress . . . could not practicably address.” Id. The same is true for the Haitian refugee crisis at issue in Sale. That situation first prompted Presidential action in 1981, and it continued through the Supreme Court’s decision in June 1993 (with a particularly urgent crisis beginning 21 months earlier in September 1991). See Sale, 509 U.S. at 159-65. Again, that lengthy situation does not support Plaintiffs’ narrow interpretation.14
B. The Proclamation Does Not Conflict With the Overall INA Scheme Plaintiffs argue that the Proclamation “contradicts multiple policy judgments Congress has enacted into law,” and thus “exceed[s] the President’s authority under § 1182(f).” IRAP Br. at 14.
1. Congressional Amendments to the INA Do Not Limit the President’s Pre-Existing Statutory Authority
a. Plaintiffs’ argument assumes that, every time Congress alters a provision of the INA, it is impliedly repealing the President’s authority under §§ 1182(f) and 1185(a)(1) to act on the same subject. That is contrary to well-settled principles of statutory construction. “[R]epeals by
14 Other examples likewise undermine Plaintiffs’ theory. For instance, President Carter’s 1979 Executive Order responded to the Iranian hostage crisis, which lasted from November 1979 to January 1981. Congress legislated on that subject at least once during that time period, see Hostage Relief Act of 1980, Pub. L. No. 96-449, 94 Stat. 1967 (1980), but no court held that Congressional action eliminated the President’s authority to impose restrictions on Iranian nationals. More recently, Presidents have continued to use § 1182(f) not solely to address exigencies, but rather as a tool to encourage foreign nations’ cooperation with the United States’ objectives. See, e.g., Exec. Order No. 13,662 (Mar. 24, 2014); Proclamation No. 7524 (Feb. 26, 2002); Proclamation No. 6730 (Oct. 5, 1994).
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implication are not favored,” and “will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’” Branch v. Smith, 538 U.S. 254, 273 (2003). Here, there is no conflict: Congress has set the minimum requirements for an alien to gain entry, but has also granted the President authority to impose additional restrictions when he deems appropriate. See Knauff, 338 U.S. at 541-42, 545-47 (holding that, although excluded alien would normally have been entitled to a statutory hearing on her exclusion, alien could be excluded without a hearing based on President’s Proclamation under the predecessor to § 1185(a)(1) and implementing regulations).
Under Plaintiffs’ theory, numerous Presidential exercises of §§ 1182(f) and 1185(a)(1) would be held unlawful. As Plaintiffs note, the INA contains a “long list” of grounds for inadmissibility, many of which implicate security, terrorism, or foreign policy. IRAP Br. at 19. Given the breadth and variety of those grounds, many exercises of the President’s § 1182(f ) authority could be characterized as supplanting a Congressional judgment embodied in one of those provisions. Plaintiffs’ argument would severely circumscribe the President’s authority, effectively reading §§ 1182(f) and 1185(a)(1) out of the INA entirely.
b. Plaintiffs’ statutory theory is particularly ill-suited to the arena of national security and foreign affairs, which involve delicate balancing in the face of ever-changing circumstances, such that the Executive must be permitted to act quickly and flexibly. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (discussing the “changeable and explosive nature of contemporary international relations”); see also Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 348 (2005). In this setting, courts typically apply the opposite presumption: courts will not assume Congress’s intent to foreclose the President’s authority over national security and foreign affairs unless Congress has specifically expressed that intent. See, e.g., Jama, 543 U.S. at 348 (“To infer an absolute rule . . .
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where Congress has not clearly set it forth would run counter to our customary policy of deference to the President in matters of foreign affairs.”); Egan, 484 U.S. at 530 (“[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”).
2. The Proclamation Comports with the Provisions Plaintiffs Cite The specific provisions of the INA relied upon by Plaintiffs do not demonstrate any conflict with the Proclamation. Citing Congress’s recent changes to the Visa Waiver Program, Plaintiffs assert that Congress already “considered the same problems” and enacted its solution. IRAP Br. at 15. But it is clearly permissible for the President and Acting Secretary to rely on factors similar to those considered by Congress; in doing so, they ensured that their actions are consistent with the INA’s principles, as Plaintiffs suggest they should. IRAP Br. at 13. Moreover, Plaintiffs misinterpret the meaning of Congress’s amendments to the Visa Waiver Program (VWP). The amendments sought to address vulnerabilities associated with individuals eligible to travel under the VWP—for example, European nationals who have “gone to Syria, Iraq, and other countries of concern in order to train and fight alongside ISIS,” and who can then use “their VWP country passports” to “board a plane bound for the U.S.” and “reach U.S. shores with relative ease.” 161 Cong. Rec. H9050-51 (Dec. 8, 2015) (Rep. Goodlatte). Because none of the Proclamation’s eight countries are VWP participants, however, the VWP amendments have no effect on the vast majority of those foreign nationals. Thus, the VWP amendments can hardly be construed, as Plaintiffs suggest, to represent a Congressional judgment about the appropriate level of screening for every alien worldwide, including the approximately 160 countries that do not participate in the VWP—which is the broader set of risks the Executive sought to address through the worldwide review that preceded the Proclamation. And as the legislative history confirms, Congress understood the VWP improvements to be only one piece of the puzzle,
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and that additional measures may still be necessary to address risks in the immigration system.15 Plaintiffs also argue that “Congress has repeatedly tightened visa screening protocols in
recent years.” IRAP Br. at 19. It is true that, since September 11, 2001, Congress has enacted laws giving the Executive Branch better tools to detect terrorist entry. Like the Visa Waiver Program amendments, however, those statutes do not suggest that Congress concluded that the existing vetting system is sufficient and that the President may not act within his own authority to improve it or pressure other nations to provide the information needed to vet their nationals.
Plaintiffs next assert that the Proclamation “impermissibly alters the visa-processing standards Congress has chosen,” by requiring an applicant to establish that denying entry would cause “undue hardship,” and that their entry “would not pose a threat to the national security or public safety of the United States” and would “be in the national interest.” IRAP Br. at 19-20 (quoting Procl. § 3(c)(i)(A)-(C)). But those “requirements” are part of the Proclamation’s waiver provision that permit exempting certain foreign nationals from the Proclamation’s restrictions. See Procl. § 3(c). Plaintiffs cannot use the waiver provision in § 3(c) to attack the validity of the entry restrictions in § 2. If the President has the greater authority to impose the entry suspensions in § 2 (and he does), that necessarily includes the lesser authority to provide for case-by-case exceptions. Indeed, waiver provisions are routinely included in Presidential entry restrictions. See, e.g., Proclamation No. 8693, § 4; Proclamation No. 8342, § 2; Proclamation No. 6958, § 2.
15 See, e.g., 161 Cong. Rec. H9050 (Dec. 8, 2015) (Rep. Miller) (“I believe that the bill that we are considering today is the first of many, quite frankly, aimed at improving our security protocols.”); id. at H9056 (Rep. Hoyer) (“The reforms in this bill are an excellent start.”); id. at H9057 (Rep. Schiff) (“In the wake of the recent terror attacks, we must continue to review our existing security efforts to ensure we are doing all we can to protect the country.”); id. at H9057 (Rep. King) (“We all know that it takes a lot of pieces of legislation to fill some of the holes that exist[.]”); id. at H9060 (Rep. Goodlatte) (“[T]his bill is just one of many, many things with regard to our immigration system that need to be examined.”); see also 8 U.S.C. § 1187(c)(5)(A)(i)(V).
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Finally, Plaintiffs assert that accepting the Government’s interpretation of §§ 1182(f) and 1185(a)(1) would mean there is “no limit to what parts of the INA the President can cancel or revise”—for example, “ban[ning] all entry on employment-based visas” based on a finding that immigrant workers are detrimental. IRAP Br. at 12. Whatever outer limits may exist on the President’s authority under §§ 1182(f ) and 1185(a), however, they are not implicated by the Proclamation here, which addresses core concerns of national security, foreign relations, and public safety. The Proclamation does not seek to subvert the INA by reinstituting a quota system, or by suspending an entire class of visas such as employment-based visas. To the contrary, the Proclamation seeks to further the INA by ensuring that the Government has the information needed to determine whether aliens present national-security or safety risks.
C. The Proclamation Does Not Run Afoul of Section 1152(a)(1) Plaintiffs argue that the Proclamation violates the non-discrimination provision of § 1152(a)(1)(A). IRAP Br. at 20-22. Plaintiffs’ argument is wrong for several reasons, including because it would lead to the absurd result that the President could not invoke his authority to restrict entry of nationals from a country with which the United States is at the brink of war.
1. Success On This Claim Would Not Support the Requested Injunction As an initial matter, Plaintiffs do not dispute that, under the immigration laws, “entry” is a distinct act from obtaining a visa. Both this Court and the Fourth Circuit have previously recognized this distinction. See IRAP, 241 F. Supp. 3d at 554; IRAP, 857 F.3d at 580-81; see also id. at 608 (Keenan, J., concurring). And this distinction is important because 8 U.S.C. §§ 1182(f) and 1185(a)(1) allow the President to restrict entry, whereas § 1152(a)(1)(A) prohibits nationalitybased discrimination in the issuance of visas. Accordingly, even if Plaintiffs were correct that the Government was violating § 1152(a)(1)(A) by denying immigrant visas on the basis of nationality, the remedy would be to
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enjoin the Government from refusing to issue visas on the basis of the Proclamation. But in no event would the remedy extend to an injunction compelling the Government to grant individuals entry into the United States. Plaintiffs’ success on this claim—whatever its effect on issuance of visas—would therefore not support invalidating the Proclamation’s entry suspensions.
2. There Is No Conflict Between the Non-Discrimination Provision and the President’s Suspension Authorities
In any event, the non-discrimination provision does not conflict with the President’s suspension authorities because the statutes operate in two different spheres. “[W]hen two statutes are capable of co-existence, it is the duty of the courts . . . to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (citation omitted). Here, there is an easy way to harmonize the statutes: §§ 1182(f) and 1185(a)(1) limit the universe of individuals eligible to receive visas, and § 1152(a)(1)(A) prohibits discrimination on the basis of nationality within that universe of eligible individuals.
The legislative history shows that Congress also understood the INA to operate in this manner. The 1965 amendments (of which § 1152(a)(1)(A) was a part) were designed to eliminate the country-quota system previously in effect, not to limit any of the pre-existing provisions like §§ 1182(f) or 1185(a)(1) addressing entry or protecting security. See H. Rep. No. 745, 89th Cong., 1st Sess., at 13 (1965) (“It should be emphasized that there has been no relaxing of the qualitative criteria for admissibility to the United States and that no relaxation of the mental, health, moral, economic, and security criteria is proposed. The bill is not a comprehensive overhaul of the immigration laws.”); S. Rep. No. 748, 89th Cong., 1st Sess., at 11 (1965) (similar). The history expressly states that the new immigrant-selection system (now codified in § 1152) was intended to operate only as to those otherwise eligible for visas. See H. Rep. No. 745, 89th Cong., 1st Sess., at 12 (1965) (Under this [new] system, selection from among those eligible to be immigrants . . .
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will be based upon the existence of a close family relationship to U.S. citizens or permanent resident aliens and not on the existing basis of birthplace or ancestry.” (emphasis added)); S. Rep. No. 748, 89th Cong., 1st Sess., at 13 (1965) (similar). There is thus no conflict between the statutes: §§ 1182(f) and 1185(a)(1) limit the universe of potentially eligible immigrants, and § 1152(a)(1) prohibits discrimination within that universe of eligible immigrants.
Historical practice also confirms this interpretation. First, with respect to § 1185(a), in 1979 President Carter directed the Secretary of State and the Attorney General to adopt “limitations and exceptions” regarding “entry” of “Iranians holding nonimmigrant visas.” Exec. Order No. 12,172 (Nov. 26, 1979); see also Immigration Laws and Iranian Students, 4A Op. O.L.C. 133, 140 (1979). President Carter subsequently amended that directive to make it applicable to all Iranians. See Exec. Order No. 12,206 (Apr. 7, 1980). Although President Carter’s Order itself did not deny or revoke visas to Iranian nationals by its terms, that is how the State Department implemented it. See 45 Fed. Reg. 24,436 (Apr. 9, 1980). Similarly, President Reagan invoked § 1182(f) to suspend immigrant entry of “all Cuban nationals,” subject to exceptions. Proclamation No. 5517. And the Supreme Court in Sale deemed it “perfectly clear” that § 1182(f ) would authorize a “naval blockade” against illegal migrants from a particular country. 509 U.S. at 187.
3. In the Event of a Conflict, the President’s Suspension Authorities Would Prevail
Interpreting § 1152(a)(1)(A) as limiting §§ 1182(f) or 1185 would require concluding that § 1152(a)(1)(A) impliedly repealed those provisions, because nationality-based restrictions would otherwise naturally fall within their plain terms. But implied repeals are disfavored, and in the event of a conflict between the statutes, the suspension authorities would prevail.
Plaintiffs assert that § 1152(a)(1)(A) is later-enacted and thus should prevail. IRAP Br. at 22. While § 1152(a)(1)(A) was later-enacted with respect to § 1182(f), that is not true for
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§ 1185(a)(1), which was modified to its current form in 1978. See Foreign Relations Authorization

Act, Fiscal Year 1979, Pub. L. No. 95-426, § 707(a), 92 Stat. 992-993 (1978). Even under

Plaintiffs’ approach, then, § 1185(a)(1) would prevail over § 1152(a)(1)(A). Plaintiffs also assert

that § 1152(a)(1)(A) is “more specific” on the issue of nationality-based discrimination. But there

is no indication that Congress intended a default rule governing non-discrimination in the visa-

issuance context to supersede the President’s authority to suspend entry. Section 1182(f ) confers

special power on the President to suspend entry of aliens, and that unique grant of authority to the

President himself is more specific and should supersede § 1152(a)(1)(A)’s general rule governing

visa issuance.16

*

*

*

*

If this Court accepted Plaintiffs’ request to interpret §§ 1182(f) and 1152(a)(1)(A) as

constraints on the President’s constitutional powers—by requiring the President, before

suspending the entry of any alien, to articulate a detailed factual basis akin to APA-style judicial

review, and by prohibiting the President from ever suspending the entry of nationals from a

particular country, even in response to an urgent crisis (e.g., the brink of war with that country)—

then the statutes would raise grave constitutional questions. This Court should reject Plaintiffs’

interpretations for that reason alone.

16 Even if Plaintiffs were correct that § 1152(a)(1)(A) prevails and would otherwise forbid withholding visas from aliens whose entry was suspended, § 1152(a)(1)(B) confirms that the State Department’s procedure of implementing § 1182(f) suspensions by denying visas to excluded individuals does not violate § 1152(a)(1)(A). Section 1152(a)(1)(B) makes clear that § 1152(a)(1)(A) does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.” See H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess., at 248 (1996) (“This section amends [§ 1152(a)(1)] to clarify that the Secretary of State has non-reviewable authority to establish procedures for the processing of immigrant visa applications and the locations where visas will be processed.” (emphasis added)).
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III. The Proclamation Does Not Violate the Establishment Clause Under Supreme Court precedent, the President’s national-security and foreign-policy
determinations set forth in the Proclamation provide “a facially legitimate and bona fide reason” for the Proclamation’s exclusion of aliens. Mandel, 408 U.S. at 770. That ends the Establishment Clause inquiry. But even if the Court were to disregard Mandel’s deferential standard and look instead to inapposite domestic Establishment Clause cases, the Proclamation is still valid. The Proclamation’s entry restrictions are the result of worldwide review and diplomatic engagement processes designed to protect national security and improve nations’ information-sharing practices. Plaintiffs’ evidence relates almost entirely to campaign statements about a suggested policy that was never adopted in any form, and they have not shown that the Proclamation was issued for a religious purpose. Instead, Plaintiffs have simply shown that, no matter the deliberativeness and thoroughness of the government’s process, they will continue to allege that the President’s actions to protect national security are all motivated by animus.
A. The Proclamation Is Constitutional Under Mandel 1. The Fourth Circuit’s now-vacated ruling acknowledged that Mandel’s test applies to constitutional challenges to the exclusion of aliens abroad. See IRAP, 857 F.3d at 588. Under that test, when the Executive gives “a facially legitimate and bona fide reason” for excluding an alien, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the” asserted constitutional rights of U.S. citizens. Mandel, 408 U.S. at 770. This rule reflects that Constitution “exclusively” allocates power over the admission of aliens to the “political branches,” id. at 765 (citation omitted), and that aliens abroad have no constitutional rights at all regarding entry into the country. See Fiallo, 430 U.S. at 792-96 (applying Mandel’s test to equal-protection challenge to statute). Mandel compels rejecting Plaintiffs’ Establishment Clause claim. The Proclamation’s
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entry restrictions rest on facially legitimate reasons: protecting national security and enhancing the government’s leverage in persuading foreign governments to share information needed to screen their nationals. See Procl. § 1. The Proclamation also sets forth a bona fide basis for these reasons: after the worldwide review and diplomatic engagement required by EO-2, the nations to which entry restrictions apply continued to have inadequate information-sharing practices or otherwise presented heightened risk factors. The Proclamation describes the global review process undertaken by DHS, in consultation with other agencies; the neutral criteria against which all nations were assessed; the subsequent diplomatic engagement process during which the Department of State encouraged nations to improve their performance; and the resulting recommendations of the Acting Secretary of DHS. See id. § 1(a)-(f), 1(i). It further explains that, based on the Acting Secretary’s recommendations and after consulting with members of the Cabinet, the President “craft[ed] . . . country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur.” See id. § 1(h). These facially legitimate and bona fide reasons for the Proclamation’s entry restrictions readily satisfy Mandel’s test. Thus, Plaintiffs’ Establishment Clause claim fails.
In reviewing the constitutionality of EO-2, the Fourth Circuit erroneously determined that Mandel’s “bona fide” requirement permits courts to examine whether the Government’s stated reasons were given “in good faith.” IRAP, 857 F.3d at 590-91. The court’s error is made clear by a subsequent decision of the Supreme Court. In Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017), the Supreme Court described Mandel’s standard as “minimal scrutiny (rational-basis review).” Rational-basis review is objective and does not permit probing government officials’ subjective intentions or second-guessing the Executive’s national-security and foreign-policy
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determinations. See Western & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 671-72 (1981) (rational-basis standard does not ask “whether in fact [a] provision will accomplish its objectives,” but whether the government “rationally could have believed” that it would do so); United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (if “there are plausible reasons for” the challenged action, the rational-basis “inquiry is at an end”). The Fourth Circuit’s now-vacated understanding of Mandel cannot be squared with Morales-Santana.
Indeed, Mandel’s objective rational-basis standard has particular force here, as courts are generally “ill equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of the Executive’s “reasons for deeming nationals of a particular country a special threat.” AAADC, 525 U.S. at 491. And courts similarly must be “wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs” because of the impact it could have on the United States’ foreign relations. Sosa v. Alvarez-Machain, 542 U.S. 692, 695 (2004).17
Because the face of the Proclamation provides an ample basis for its restrictions, the Court’s inquiry is at an end. The Court cannot look behind the stated reasons in an effort to determine for itself whether the President’s national-security and foreign-policy justifications were given in good faith.
2. In any event, Plaintiffs do not and cannot show that the Proclamation’s stated national-
17 The Fourth Circuit based its approach on a reference to “bad faith” in the concurrence in Din. IRAP, 857 F.3d at 590-91. But the concurrence did not propose an enormous loophole in Mandel, especially with respect to a formal national-security and foreign-policy determination of the President. It merely hypothesized that, if the government had not identified a factual basis for the consular officers’ decision at issue, the plaintiff might have been able to seek “additional factual details” about the basis of the consular officer’s decision (provided the information is not classified). Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in judgment). In contrast, when the government does identify a factual basis—as it did in Mandel and Din by citing a statutory provision that itself included sufficient factual predicates, and also has done here through the Proclamation’s text—that is the end of the analysis.
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security and foreign-policy rationales are a pretext for a purported motive of banning Muslims. See IRAP Br. at 24-25. Plaintiffs rely solely on the Fourth Circuit’s prior conclusion in its vacated decision, which is not controlling law, that EO-2 was issued in bad faith. See id. at 25. But the allegations against EO-2 cannot justify a similar determination against a different government action—the Proclamation. Indeed, as the IRAP plaintiffs previously acknowledged, future presidential actions should be judged on their own terms. See, e.g., Tr. of Hearing for TRO at 10, IRAP v. Trump (D. Md. Mar. 15, 2017) (arguing that invalidation of EO-2 would not “tie[] the hands of the Government going forward” because in future challenges the court would “take into account what’s changed, what’s different, both in the order itself or the law itself and in the conditions on the ground”); IRAP Reply Br. (ECF No. 130) at 11-12 n.15.
Nearly all of the evidence on which the Fourth Circuit relied predates the Proclamation by more than a year. And the Proclamation is the result of worldwide review and diplomatic engagement processes that took place after EO-2’s issuance. These processes combined the efforts of multiple government agencies and resulted in recommendations from the Acting Secretary of DHS to the President as to what entry restrictions were necessary to address the inadequacies identified by the agencies during their review and to encourage countries to cooperate with the United States to address those inadequacies. The processes and the resulting entry restrictions are more tailored and relate to a different set of countries than those in EO-2.
Plaintiffs cannot plausibly maintain that the numerous government officials involved in the global review and engagement processes were acting in bad faith or harbored anti-Muslim animus, and Plaintiffs have made no such allegations. Plaintiffs’ theory also would require the Court to conclude that the Government’s diplomatic efforts—which resulted in numerous countries providing travel document exemplars and agreeing to share information on suspected terrorists—
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were a charade. Plaintiffs again provide no basis for such an assertion. B. The Proclamation is Valid Under Domestic Establishment Clause Precedent Even in the domestic context, a court deciding whether official action violates the
Establishment Clause because of an improper religious purpose looks only to “the ‘text, legislative history, and implementation of the statute,’ or comparable official act.” McCreary County v. ACLU of Ky., 545 U.S. 844, 862 (2005). The court is not to engage in “judicial psychoanalysis of a drafter’s heart of hearts.” Id. Searching for purpose outside the operative terms of governmental action makes no sense in the Establishment Clause context, because it is only an “official objective” of favoring or disfavoring religion that implicates the Clause. Id.
There is no basis for invalidating the Proclamation under that standard. The Proclamation’s text does not refer to or draw any distinction based on religion. And the Proclamation’s “operation,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993), confirms that it is religion-neutral: it applies tailored restrictions to eight countries based on detailed findings regarding the national-security and foreign-policy interests of the United States that were reached after a thorough, worldwide review and extensive consultation, and the entry restrictions apply to certain nationals of those countries without regard to their religion.
Plaintiffs assert that an anti-Muslim purpose can be inferred from the Proclamation’s inclusion of six majority Muslim countries. But the Proclamation omits the overwhelming number of majority-Muslim countries, including Sudan and Iraq, both of which were included in prior entry suspensions under EO-2 or Executive Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) [hereafter “EO-1”]. It is neither surprising nor pernicious that the six majority Muslim countries are included, as five of them were previously identified by Congress and DHS as countries presenting terrorism-related concerns. See 8 U.S.C. § 1187(a)(12). In addition, the Proclamation applies entry restrictions to two countries that do not have majority Muslim populations (North
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Korea and Venezuela), and a third country that has a substantial (approximately 48 percent) nonMuslim population (Chad). See CIA, The World Factbook: Africa: Chad, https://www.cia.gov/library/publications/the-world-factbook/geos/cd.html.
Plaintiffs’ assertion also ignores that the entry restrictions in the Proclamation are customized for each nation, with the aim of balancing the Government’s national-security and foreign-policy goals. See Procl. § 1(h). Thus, nationals of some designated countries can enter the United States for certain purposes.18 The Proclamation also provides for case-by-case waivers of the entry restrictions in a variety of circumstances. See id. § 3(c). And it requires periodic reviews so that entry restrictions can be removed or relaxed if countries improve their informationsharing practices. See id. § 4. Neither the Proclamation’s text nor its operation evidence an intent to exclude Muslims.
Plaintiffs rely almost exclusively on the Fourth Circuit’s now-vacated conclusion that EO2 was motivated primarily by religion to argue that the Proclamation was similarly motivated. See IRAP Br. at 26-29. Thus, Plaintiffs’ purported evidence of improper purpose is largely a rehashing of campaign-trail statements and informal remarks of the President’s aides about EO-1 and EO-2. See id. Even if those statements could be considered in the search for official purpose at all (and they cannot, as the Government previously argued), they do not demonstrate that the Proclamation’s purpose is religious.
“[P]ast actions” cannot “forever taint” future government efforts. McCreary, 545 U.S. at
18 For example, the entry suspensions do not apply to Iranian nationals seeking to enter on student (F and M) and exchange visitor (J) visas, which, in FY 2016, totaled 4,368 individuals. See U.S. Department of State, Nonimmigrant Visas Issued, FY 2016, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16 AnnualReport-TableXVII.pdf. Similarly, Yemeni nationals may enter on most types of nonimmigrant visas; in FY 2016, 1,271 individuals entered the United States on such visas. See id.
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874. Nearly all of the statements on which Plaintiffs rely were made more than a year before the President issued the Proclamation. See IRAP Br. at 26, 29. In addition, none of the statements address the Proclamation; rather, they are about campaign-trail suggestions that were never adopted, EO-1, or EO-2. Past statements that are not connected to the Proclamation are not relevant to the Government’s purpose.
Finally, the specific sequence of events leading to the issuance of the Proclamation severs any connection between EO-2’s supposed religious purpose and the Proclamation. Cf. Felix v. City of Bloomfield, 841 F.3d 848, 863 (10th Cir. 2016) (explaining that “curative efforts” can “neutralize” a previously religious message); Books v. City of Elkhart, Ind., 235 F.3d 292, 304 (7th Cir. 2000) (acknowledging that “subsequent history” can “transform[] [a] religious purpose”). The global review and diplomatic engagement processes that led to the Proclamation—which entailed participation of numerous Executive Branch agencies, employed religion-neutral criteria to assess the risks posed by all nations, and provided for a period of diplomatic engagement in an effort to reduce or eliminate the need for any entry restrictions—demonstrate that the Proclamation has a distinct foundation. See, e.g., McGowan, 366 U.S. at 445 (stating that original religious purpose of Sunday closing laws did not preclude legislature from achieving secular goals by prescribing Sunday as a day of rest); Children’s Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1088-89, 1099 (8th Cir. 2000) (upholding statutory amendment that provided religious exemption even though prior version was invalidated on Establishment Clause grounds).19
19 Plaintiffs assert that EO-2’s purported religious purpose infects the Proclamation because the global review and engagement processes were required by certain sections of EO-2. See IRAP Br. at 29. This Court, however, did not enjoin those sections of EO-2 precisely because it did not find that they were motivated by a religious purpose. See IRAP, 241 F. Supp. 3d at 565; see also IRAP, 137 S. Ct. at 2089 (explaining that Court’s partial stay of EO-2 injunctions would “permit the Executive to conclude its internal work and provide adequate notice to foreign governments”). Moreover, EO-2 did not dictate the results of the comprehensive review it required.
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Citing McCreary, Plaintiffs contend that the differences between EO-2 and the Proclamation amount to “little more than the kind of ‘litigating position’ that reasonable observers easily see through.” IRAP Br. at 27. That allegation disregards that the Proclamation was based on recommendations of the Acting Secretary of DHS after an extensive, multi-agency process. See United States v. Chemical Found., Inc., 272 U.S. 1, 14 (1926) (describing the “presumption of regularity” that attaches to all federal officials’ actions). In any event, comparing the Proclamation to the third in a series of Ten Commandments displays at issue in McCreary demonstrates that the Proclamation does not embody a religious purpose.
First, McCreary involved displays with explicitly religious content, and the issue was whether the displays had a secular purpose that rendered them permissible under the Establishment Clause. Here, the Proclamation has no reference to religion in its terms or its operation.
Second, although the counties in McCreary offered new statements of a secular purpose for the third display in litigation, those statements were not supported by any “authorizing action by the Counties’ governing boards.” 545 U.S. 871. The display also contained “no context that might have indicated an object beyond the religious character of the text.” Id. at 868. In contrast, the Proclamation does not mention religion, and explains its secular purposes—to protect national security and enhance the Government’s leverage in persuading nations to supply information needed to screen their nationals. The context in which the Proclamation was issued—after multiagency review and consultation—highlights its national-security and foreign-policy objectives.
Third, unlike the third display in McCreary, which “quoted more of the purely religious language of the Commandments than the first two displays had done,” 545 U.S. at 872, the Proclamation materially differs from EO-2 in ways that eliminate—rather than add to—any supposed religious message. The Proclamation is supported by new and different national-security
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findings, reached after thorough, worldwide review and engagement processes, and based on recommendations of the Acting Secretary of DHS. It applies to a different set of countries than EO-1 or EO-2: majority Muslim countries like Sudan and Iraq have been removed, while nonmajority Muslim countries like North Korea and Venezuela have been added. And the Proclamation imposes more tailored entry restrictions than EO-1 or EO-2, which allow nationals from some designated countries to enter for certain purposes.
Lastly, the counties in McCreary never “repudiated” the resolutions authorizing the prior Ten Commandments displays, which contained “extraordinary” references to religion. 545 U.S. at 871. Here, in contrast, since EO-2’s issuance, the President has, in an official address, praised Islam as “one of the world’s great faiths,” decried “the murder of innocent Muslims,” and emphasized that the fight against terrorism “is not a battle between different faiths, different sects, or different civilizations,” but one “between barbaric criminals who seek to obliterate human life and decent people” of all religions who “want to protect life.” Washington Post Staff, President Trump’s full speech from Saudi Arabia on global terrorism, Wash. Post, May 21, 2017, https://goo.gl/viJRg2. Thus, the Proclamation represents a “genuine change[] in constitutionally significant conditions.” McCreary, 545 U.S. at 874.
In sum, by arguing that the campaign and other statements that preceded EO-2 continue to taint the Proclamation notwithstanding all of the procedural and substantive differences between the two, Plaintiffs effectively contend that President Trump is forever disabled from regulating immigration from majority-Muslim countries. No case supports that dangerous approach, McCreary and others refute it, and this Court should reject it too.20
20 Plaintiffs argue in a single paragraph that the Proclamation discriminates based on religion in violation of the Equal Protection Clause. See IRAP Br. at 30-31. That claim fails for the same reasons as Plaintiffs’ Establishment Clause claim. See, e.g., Fiallo, 430 U.S. at 792-96.
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IV. The Remaining Preliminary Injunction Factors Weigh Against Relief Plaintiffs have not demonstrated that “irreparable injury is likely in the absence of an
injunction.” Winter, 555 U.S. at 22. The closest Plaintiffs come to alleging concrete harm is their assertion that the Proclamation will prevent their foreign-national family members from entering the United States while the Court considers the case on the merits. But delay in entry alone does not amount to irreparable harm. Visa processing times vary widely, and until the aliens abroad meet the otherwise-applicable visa requirements and seek and are denied a waiver, they have not received final agency action and their claimed harms are too “remote” and “speculative” to merit injunctive relief. Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991).
On the other side of the scales, an injunction would cause direct, irreparable injury to the government and public interest. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). A fortiori, the same principle applies to a national-security and foreign-policy judgment of the President. “[N]o governmental interest is more compelling than the security of the Nation,” Agee, 453 U.S. at 307, and “the President has unique responsibility” in this area, Sale, 509 U.S. at 188. Courts, moreover, have recognized the danger of “impinging on the discretion of the [President] in managing foreign affairs.” Sosa, 542 U.S. at 695. The Department has formally recommended entry restrictions to address ongoing “threats . . . to the security and welfare of the United States,” and the President likewise exercised his judgment to craft country-specific entry restrictions that will “be most likely to encourage cooperation” while at the same time “protect[ing] the United States.” Procl. § 1(h). The Court should not interfere with, or second-guess, those judgments.
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V. A Global Injunction Would Be Inappropriate Constitutional and equitable principles require that any injunctive relief be limited to
redressing a plaintiff’s own cognizable injuries. Article III requires that “a plaintiff must demonstrate standing . . . for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017). “The remedy” sought therefore must “be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Equitable principles independently require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).
In light of these principles, any injunction the Court enters should be limited to relieving the specific injury of only those Plaintiffs whom the Court determines have a cognizable and meritorious claim and who will suffer irreparable harm in the absence of an injunction. The injunction should not extend beyond those Plaintiffs’ identified family members, clients, or members. The injunction also should not extend beyond Section 2 of the Proclamation; nor should it cover the specific provisions of Section 2 that Plaintiffs do not challenge, like the entry restrictions for Chad, Libya, North Korea, and Venezuela. See IRAP, 241 F. Supp. 3d at 565.
The Proclamation’s severability clause compels the same approach. Section 8(a) provides that, if “the application of any provision to any person or circumstance[] is held to be invalid,” then “the application of [the Proclamation’s] other provisions to any other persons or circumstances shall not be affected.” Such tailored relief would pose far less interference than enjoining the President’s directive wholesale based on alleged injuries to a few plaintiffs.
CONCLUSION The Court should deny Plaintiffs’ motion for a preliminary injunction.
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Dated: October 12, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
STEPHEN M. SCHENNING Acting United States Attorney
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Daniel Schwei DANIEL SCHWEI (Bar No. 96100) MICHELLE R. BENNETT (Bar No. 806456) ARJUN GARG (Bar No. 806537) Senior Trial Counsel / Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington DC 20530 Tel: (202) 305-8693 Fax: (202) 616-8470 E-mail: daniel.s.schwei@usdoj.gov

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 Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS 154 Grand Street New York, NY 10013
IRANIAN STUDENTS’ FOUNDATION, IRANIAN ALLIANCES ACROSS BORDERS AFFILIATE AT THE UNIVERSITY OF MARYLAND COLLEGE PARK 3792 Campus Drive College Park, MD 20742
DOE PLAINTIFFS 1–61
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue Washington, DC 20500
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue NW Washington, DC 20016
KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner of U.S. Customs and Border Protection 1300 Pennsylvania Avenue NW Washington, DC 20229

Case No. 17-cv-02921 Judge Chuang
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF

1 All of the individual Plaintiffs moved to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject Plaintiffs to harassment (potentially including violence) and threats. As set forth below, at least three of the “Doe” Plaintiffs reside in Montgomery County, Maryland. For similar reasons, all Plaintiffs moved to proceed anonymously.

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JAMES MCCAMENT, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services 20 Massachusetts Avenue NW Washington, DC 20008
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW Washington, DC 20037
JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001
Defendants.
INTRODUCTION 1. Plaintiffs bring this case to challenge President Donald J. Trump’s latest attempt
to implement an unlawful Muslim ban, this time through the “Presidential Proclamation
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United
States by Terrorists or Other Public-Safety Threats” (“the Proclamation”) issued on September
24, 2017 (Attachment A to this Complaint). Plaintiffs are United States citizens and Lawful
Permanent Residents with bona fide relationships with current or potential applicants for
immigrant and non-immigrant visas to the United States from the countries affected by the
Proclamation, as well as two organizations of similarly situated individuals.
2. President Trump has been consistent and clear about his intention to restrict
Muslims from entering the United States. Beginning on December 7, 2015, he called for “a total
and complete shutdown of Muslims entering the United States.” Throughout the remainder of
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his campaign, he pledged to follow through on this promise in terms that explicitly discriminated against Muslims.
3. In the first days of his presidency, President Trump sought to fulfill this campaign promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “First Executive Order”). On its face, the First Executive Order restricted travel to the United States for 90 days for nationals of seven countries, all Muslim-majority countries. It also put in effect a world-wide ban on refugees, with certain exceptions for those of minority religious faiths. The First Executive Order spurred significant litigation in several district courts and was enjoined on a national basis on February 3, 2017, on a finding that the plaintiffs showed they were likely to succeed on the merits of their constitutional challenges, or, in the alternative, that “they have established at least serious questions going to the merits of their claims and the balance of equities tips sharply in their favor.” Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017).
4. On March 6, 2017, President Trump rescinded and replaced the First Executive Order with Executive Order 13780 (the “Second Executive Order”). The Second Executive Order had the same purpose and effect as the first: Both were designed to, and did, prevent Muslims from entering the United States. The major provisions of the two orders were nearly identical. Both included language reflecting bigotry, implicitly associating Muslims with violence and terrorism. The Second Executive Order suffered from the same fundamental constitutional and statutory defects as the first, so it too was blocked by the courts. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc). The Supreme Court narrowed these two preliminary injunctions to enjoin the application of the relevant provisions with respect to visitors and immigrants to the
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United States only if they have a bona fide relationship with a U.S. individual or entity. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).2
5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.
6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.
7. The Proclamation penalizes the nationals of the targeted Muslim-majority countries without adequate determinations or findings as to a detrimental impact on the interests of the United States of any of those particular nationals, and it harms U.S. citizens and U.S. Lawful Permanent Residents with family or business ties to these countries—particularly those with bona fide relationships with current or potential applicants for immigrant and non-
2 On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
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immigrant visas to the United States from the countries affected by the Proclamation—as well as organizations of similarly situated individuals.
8. The Proclamation, like the First and Second Executive Orders that preceded it, violates the Immigration and Nationality Act’s prohibition against discrimination in the issuance of immigrant visas, 8 U.S.C. § 1152(a)(1), and exceeds the President’s authority under the Immigration and Nationality Act’s provisions delineating classes of aliens ineligible for visas or admission and the nature of Presidential suspension that is authorized, 8 U.S.C. § 1182.
9. The Proclamation, like the First and Second Executive Orders that preceded it, violates fundamental, dearly held constitutional protections. It violates the guarantees that the government will not establish, favor, discriminate against, denigrate, or condemn any religion; the guarantee of freedom of speech; and the guarantee of equal protection of the law. It betrays our nation’s most central principles and forsakes our common heritage as a country founded in part on the principle of freedom from religious persecution.
10. As a result of the Proclamation, the individual Plaintiffs and some members of the Iranian Students’ Foundation (“ISF”) are cut off from their family members, unable to have their relatives visit under tourist visas or join them as immigrants to the United States. Specifically, some members of the community ISF serves will not be able to have their families attend commencement celebrations in the winter and spring. ISF also expects a reduction in membership because the Proclamation will make it difficult for future Iranian students to come to the University of Maryland and join the group. The Proclamation violates the Immigration and Nationality Act, constitutes an exercise of authority in excess of the Act, and violates the Establishment Clause and due process and equal protection guarantees of the Fifth Amendment. Plaintiffs Iranian Alliances Across Borders (“IAAB”) and ISF suffer further harms to their
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constitutionally-protected rights to engage in the free flow of ideas and association under the

First Amendment.

A.

The Plaintiffs

PARTIES

11. IAAB is a national organization, founded in 2003 by Iranian-American university

students. Its mission is to strengthen the Iranian diaspora community through leadership and

educational programming that encourages collaboration and solidarity across borders and

between communities. IAAB organizes camps for youths, regional summits, Persian-language

educational events, international conferences on the Iranian diaspora, and other activities, and in

so doing is in the practice of inviting prominent scholars and other participants from outside the

country, including from Iran, to the United States for its events. IAAB affiliates through its

Campus Action Network with a national network of affiliated Iranian-American student groups

and representatives, including groups at the University of Maryland, College Park, one of the

biggest and most active Iranian-American student groups in the nation, and a group at the

University of Maryland in Baltimore.

12. ISF is an affiliate of IAAB. It is a student group at the University of Maryland,

College Park and is one of the oldest Iranian student organizations in the country. ISF has over

30 active student members at any given time, with many more participants attending events and

meetings throughout the year. Most of ISF’s members are first generation Iranian-Americans,

but some members hold student visas and others are non-Iranian. ISF holds weekly general body

meetings, fundraising events, and social events for students. It also regularly organizes

conferences and events with attendees and leaders from across the country. ISF hosts cultural

celebrations for the Iranian community that are attended by University students, alumni, and

members of the community. ISF provides its members and prospective members with 6

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opportunities to meet others with similar interests and backgrounds. It also seeks to keep the rich Persian history and culture alive for the descendants of that nation and all interested in the culture.
13. Doe Plaintiff #1 is a U.S. citizen of Iranian origin who fled religious persecution in Iran. From 2015 to 2016, she lived in Bethesda, Maryland, and was looking forward to building her life there. She met her now-husband in 2015, and they married in 2016. Because her husband does not have permission to reside in the United States, she relocated to the United Arab Emirates on a temporary basis to live with him while his visa application to the United States was being processed. She submitted an I-130 form for her husband in June 2016, and the request was approved on September 20, 2017. She fears that due to the Proclamation, his visa will now be suspended and they will be indefinitely banned from building their life together in Maryland as they had hoped. Their residency status in the United Arab Emirates is uncertain; they can never receive permanent residency and must continue to reapply for temporary residency every three years. They would face persecution if forced to return to Iran.
14. Doe Plaintiff #2 is a U.S. citizen of Iranian origin. She was born in the United States and has lived in Maryland ever since. She graduated from the University of Maryland, College Park in 2017 and continues to live and work in Maryland. In February 2017, she applied for a K-visa for her fiancé, who is Iranian. He completed his interview at the U.S. Embassy in Ankara, Turkey on August 4, 2017, and she is awaiting a final response on his application. If the visa is not granted by October 18, 2017, Doe Plaintiff #2 will be separated indefinitely from her fiancé, and will be forced to choose between the only home she has ever known and the love of her life.
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15. Doe Plaintiff #3 is a U.S. citizen of Iranian origin. She became a U.S. citizen in 1994. She has lived in Montgomery County, Maryland for many years and has been a specialeducation teacher for Montgomery County Public Schools since 2006. She has a pending I-130 application for her younger brother, who is the only remaining family member in Iran. Her mother, father, and two brothers are all in the United States. If the Proclamation goes into full effect on October 18, processing of her petition will be suspended and she will be indefinitely banned from reuniting here with her brother.
16. Doe Plaintiff #4 is a U.S. citizen of Iranian origin. She has lived in the United States since 1978 and is a resident of Montgomery County, Maryland. She has a pending I-130 application on behalf of her sister, who is 72 years old and remains in Iran. If the Proclamation goes into full effect on October 18, the processing of her application will be suspended and she will be indefinitely banned from reuniting here with her sister.
17. Doe Plaintiff #5 is an elderly Iranian national and a Lawful Permanent Resident of the United States, who resides in Montgomery County, Maryland. She has been in the United States since 2010 and lives with her husband and her U.S. citizen son. She applied to sponsor her second son shortly after she became a resident, and her I-130 application was approved in November 2010. In December 2016, her son received a letter scheduling his interview at the U.S. Embassy in Ankara, Turkey for February 5, 2017. Because of the First Executive Order, that interview was canceled. After the First Executive Order was enjoined by the courts, his interview was rescheduled for March 20, 2017. He completed the interview and is now awaiting final approval to come to the United States. Doe Plaintiff #5 is in desperate need of her son’s presence, as she is wheelchair-bound. Her husband, who is 90 years old, also has significant health problems. Her U.S. citizen son is their only caretaker, and they all need the assistance of
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her other son. If the Proclamation goes into full effect on October 18, the processing of his

application will be suspended and Doe Plaintiff #5 will be indefinitely banned from reuniting

with her son.

18. Doe Plaintiff #6 is an Iranian national and a Lawful Permanent Resident of the

United States, who resides in Maryland. He has lived in the United States for five years and

works as an engineer. His wife, who also resides in Maryland, is Iranian and is employed at the

National Institutes of Health as a biochemistry researcher. She has a Ph.D. in Chemistry from

Johns Hopkins University. They have together made their home in Maryland. His mother-in-

law and sister-in-law have each applied for business/tourist (B1/B2) visitor visas in order to

come visit them, and both had their interviews at the U.S. Embassy in Dubai on January 5, 2017.

If their visitor visas are not issued before the Proclamation goes into full effect on October 18,

they will be indefinitely banned from coming to the United States to visit their son-in-law and

brother-in-law, as well as their daughter and sister, and they will be separated indefinitely from

some of their closest and dearest family members.

B.

The Defendants

19. Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity. President Trump issued the Proclamation that is the subject of this lawsuit.

20. Defendant Elaine C. Duke is the Acting Secretary of Homeland Security and is

sued in her official capacity. The Department of Homeland Security (“DHS”) is an executive

department of the United States government, headquartered in Washington, DC. DHS was

involved in preparing a report that was cited in the Proclamation and is assigned several

responsibilities regarding implementation and enforcement of the Proclamation. Acting

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Secretary Duke is responsible for DHS’s administration of the Immigration and Nationality Act (“INA”) and its implementation and enforcement of the Proclamation.
21. Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and Border Protection and is sued in his official capacity. The U.S. Customs and Border Protection (“CBP”) is an administrative agency within DHS, headquartered in Washington, DC. The Proclamation assigns CBP various responsibilities regarding implementation and enforcement. Acting Commissioner McAleenan is responsible for CBP’s implementation of the INA and its implementation and enforcement of the Proclamation.
22. Defendant James McCament is the Acting Director of U.S. Citizenship and Immigration Services and is sued in his official capacity. The U.S. Citizenship and Immigration Services (“USCIS”) is an administrative agency within DHS, headquartered in Washington, DC. USCIS oversees lawful immigration to the United States. Acting Director McCament is responsible for USCIS’s implementation of the INA and its implementation and enforcement of the Proclamation.
23. Defendant Rex W. Tillerson is the Secretary of State and is sued in his official capacity. The Department of State is an executive department of the United States, headquartered in Washington, DC. The State Department consulted on the report prepared by DHS and is responsible for issuing visas and implementing the Proclamation. The Proclamation assigns the State Department various responsibilities regarding implementation and enforcement. Secretary Tillerson oversees the State Department’s activities with respect to the INA and its implementation and enforcement of the Proclamation.
24. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is sued in his official capacity. The Department of Justice (“DOJ”) is an
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executive department of the United States, headquartered in Washington, DC. The Proclamation assigns the Department of Justice various responsibilities regarding implementation and enforcement. Attorney General Sessions oversees the DOJ’s activities with respect to the INA and the implementation and enforcement of the Proclamation.
JURISDICTION AND VENUE 25. The Court has federal question jurisdiction under 28 U.S.C. § 1331. 26. The Court has authority to award declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 and the Administrative Procedure Act, 5 U.S.C. § 706. 27. Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(C).
STATEMENT OF FACTS A. President Trump’s Express Intent to Target Muslims for Prohibition
Against, or Restrictions on, Entry into the United States 28. President Donald Trump made his intent to impose a “Muslim ban” against those entering the United States a central tenet of his campaign for President and since assuming office, he has worked to give effect to this Muslim ban through various measures, culminating in the Proclamation. 29. In a series of interviews in the fall of 2015, Mr. Trump stated that he would require Muslims in the United States to register with the government, and he insisted that the country had “absolutely no choice” but to shut down mosques. 30. On December 7, 2015, after the attack in San Bernardino, California, Mr. Trump released a written statement on his campaign website calling for a “total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is
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going on.”3 This original statement invoked invidious stereotypes of Muslims, suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women. He suggested that barring immigration by Muslims was necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”4
31. When asked that same day how customs officials would apply such a ban, Candidate Trump said, “[T]hey would say, are you Muslim?” In response, a reporter asked, “[I]f they say yes, they would not be allowed in the country?” Candidate Trump responded, “That’s correct.”5
32. This intended Muslim ban became a central talking point of the Trump campaign, promoted by Mr. Trump and his surrogates at campaign events across the country.
33. On January 14, 2016, when asked whether he had rethought his “comments about banning Muslims from entering the country,” Mr. Trump responded “No.”6
3 Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015), https://web.archive.org/web/20170508151734/www.donaldjtrump.com/press-releases/donald-j.trump-statement-on-preventing-muslim-immigration. 4 Id. 5 Jenna Johnson & Sean Sullivan, Donald Trump explains how his ban on Muslims entering the U.S. would work, WASH. POST (Dec. 8, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/08/donald-trump-explains-how-his-ban-on-muslims-entering-the-u-s-wouldwork/?utm_term=.c0bda2a45d8b. 6 Gerhard Peters & John T. Wooley, Presidential Candidate Debates: Republican Candidates Debate in North Charleston, South Carolina, The American Presidency Project (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395.
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34. On March 9, 2016, Mr. Trump stated in a televised interview that “I think Islam hates us . . . and we can’t allow people coming into this country who have this hatred of the United States.”7
35. On June 13, 2016, after an attack on a nightclub in Orlando, Florida, Mr. Trump gave a speech in which he said, “I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.” He went on to clarify that he blamed Islam, writ large, for such attacks: “We cannot continue to allow thousands and thousands of people to pour into our country, many of whom have the same thought process as this savage killer.”8 He blamed “Muslim communities” for failing to “turn in the people who they know are bad—and they do know where they are.”9
36. On July 17, 2016, Mr. Trump was asked to respond to criticism by his running mate (now the Vice President) that a ban on Muslims entering the country would be unconstitutional. He responded, “So you call it territories, okay? We’re gonna do territories.”10
37. On July 24, 2016, Mr. Trump was asked if this statement constituted a “rollback” from his intended Muslim ban. His answer was “I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were
7 Exclusive Interview by Anderson Cooper with Donald Trump, Presidential Candidate, in Miami, Fl. (Mar. 9, 2016), http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. 8 Transcript: Donald Trump’s national security speech, Politico (Jun. 13, 2016, 3:06 PM), http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273. 9 Id. 10 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (Jul. 17, 2016), http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/.
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so upset when I used the word Muslim. Oh, you can’t use the word Muslim. . . . And I’m okay with that, because I’m talking territory instead of Muslim.”11
38. On October 9, 2016, during a televised presidential debate, Mr. Trump stated that “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.”12
39. These remarks signal Mr. Trump’s search for a pretext to disguise blatant animus toward Muslims and presage how his administration would carry out his unconstitutional measure by dressing it up as a bona fide national security measure.
B. The First Executive Order 40. On January 27, 2017, a week after assuming office, President Trump signed Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”13 At the time of signing, his original December 7, 2015, statement calling for a “total shutdown” of Muslim entrants remained live on his campaign website. 41. At the signing ceremony, President Trump read the order’s title, and stated, “We all know what that means.”14 The next day, President Trump’s advisor and vice chair of his transition team, Rudy Giuliani, stated that the First Executive Order was the result of an
11 Interview by Chuck Todd with Donald Trump, Presidential Candidate on Meet the Press (Jul. 24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016n615706. 12 Gerhard Peters & John T. Wooley, Presidential Debate at Washington University in St. Louis, Missouri, The American Presidency Project (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038. 13 82 Fed. Reg. 8977 (Jan. 27, 2017). 14 Matt Shuham, Trump Signs Executive Order Laying Out ‘Extreme Vetting,’ Talking Points Memo (Jan. 27, 2017, 4:56 PM), http://talkingpointsmemo.com/livewire/trump-signs-vettingexecutive-order.
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instruction by President Trump to him to find a way to implement a “Muslim ban” “legally.”15 Three days later, on January 30, President Trump referred on his Twitter account to the First Executive Order as “the ban.”16
42. The First Executive Order banned entry of nationals of seven Muslim-majority countries17 for 90 days, suspended the entire U.S. Refugee Admissions Program for 120 days, established a policy of prioritizing certain religious denominations over others upon resuming the Refugee program, and indefinitely barred entry of all Syrian refugees.18
43. In its “Purpose” section, the First Executive Order explicitly relied on negative stereotypes about Islam, stating that the United States should not admit individuals who “place violent ideologies over American law” or engage in acts of violence “including ‘honor killings,’ [or] other forms of violence against women.”19
44. An overt preference for Christian refugees was one of the objectives of the First Executive Order. Section 5(b) directed the Secretary of State, in consultation with the Secretary of Homeland Security, to give priority to refugee claims made by persons fleeing “religious-
15 See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ The Hill (Jan. 29, 2017, 8:48 AM), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally. 16 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017 5:31AM), https://twitter.com/realdonaldtrump/status/826060143825666051?lang=en (“If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week. A lot of bad ‘dudes’ out there!”). 17 Some of the targeted countries have far more than simple Muslim majority. In Iran and Yemen for instance, over 99% of the population is Muslim. The World Factbook: Middle East: Iran, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (last visited October 2, 2017); The World Factbook: Middle East: Yemen, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ym.html (last visited October 2, 2017). 18 See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c). 19 Id. § 1.
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based persecution,” but only if the claimant belonged to a “minority religion in the individual’s country of nationality.”20 Although this exception was not expressly limited to religious minorities residing in Muslim-majority countries, President Trump explained in an interview that this exception was intended to give priority to Christian refugees over their Muslim counterparts.21
45. Like the current Proclamation, the First Executive Order attempted to mask its unconstitutional purposes with national security and foreign policy rationales, suggesting that its implementation would protect the country from terrorists.
46. The First Executive Order was immediately met with a series of legal challenges across the country. The day after the First Executive Order was issued, the U.S. District Court for the Eastern District of New York granted an Emergency Motion for Stay of Removal, enjoining the government from removing individuals with approved applications under the Refugee Admissions Program, holders of visas, and other individuals legally authorized to enter the United States from the seven countries designated in the First Executive Order. Darweesh v. Trump, No. 1:17-cv-00480, ECF 8 at 2 (E.D.N.Y. Jan. 28, 2017). It did so on the basis that the petitioners had a strong likelihood of success in establishing that removal would violate their rights to due process and equal protection, and that there was imminent danger of “substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to” the First Executive Order. Id.
20 Id. § 5(e). 21 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
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47. On February 3, 2017, the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order enjoining enforcement of several sections of the First Executive Order on a nationwide basis. Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 5 (W.D. Wash. Feb. 3, 2017). That order was upheld by the U.S. Court of Appeals for the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017).
48. During the pendency of the Washington case, the U.S. District Court for the Eastern District of Virginia preliminarily enjoined Section 3(c) of the First Executive Order, finding that the statements made by President Trump and his Administration demonstrated an intent to ban Muslims from the United States, and that the plaintiffs were therefore likely to succeed on the merits of their Establishment Clause claims. See Aziz v. Trump, No. 1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).
49. One week after the Ninth Circuit’s decision in Washington v. Trump, the Department of Justice informed the Ninth Circuit that the President intended to rescind the First Executive Order and replace it with a “new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” Defendants-Appellants’ Supplemental Brief on En Banc Consideration, Washington v. Trump, No. 17-35105, ECF 154 at 4 (9th Cir. Feb. 16, 2017).
50. On February 21, 2017, a White House Senior Policy Advisor elaborated during an interview that the intended revised executive order would include “mostly minor technical differences” but “[f]undamentally, you’re still going to have the same basic policy outcome for the country.”22
22 Matt Zapotosky, A new travel ban with ‘mostly minor technical differences’? That probably won’t cut it, analysts say, Wash. Post (Feb. 22, 2017), https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-
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51. On February 24, 2017, the Associated Press obtained a DHS report prepared at the request of the Acting Under Secretary for Intelligence and Analysis.23 That report found that citizenship is “likely an unreliable indicator” of terrorist activity,24 despite the First Executive Order’s supposed purpose to protect the nation from foreign terrorists.
C. The Second Executive Order 52. On March 6, 2017, President Trump issued a new executive order with the same name.25 The Second Executive Order removed Iraq from the list of countries from which nationals were categorically banned from entry into the United States, but subjected Iraqis entering the United States to enhanced vetting.26 The Second Executive Order also eliminated the priority for refugees of minority religions but still referenced “acts of gender-based violence against women, including so-called ‘honor killings’ in the United States by foreign nationals.”27 53. The Second Executive Order also directed the Secretary of Homeland Security to “conduct a worldwide review” to determine what information the U.S. government needed from foreign governments to adjudicate visa applications.28 54. On March 15, 2017, the U.S. District Court for the District of Hawaii issued a nationwide temporary restraining order against Sections 2 and 6 of the Second Executive Order.
minortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f91811e6-bf01-d47f8cf9b643_story.html. 23 Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24, 2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravel-bantrump/98374184/. 24 Id. 25 82 Fed. Reg. 13209 (March 6, 2017). 26 Id. § 4. 27 Id. § 11(a)(iii). 28 Id. § 2(a).
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Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).29 It did so on the basis that the plaintiffs “met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim.” Id. at 1123.
55. The next day, this Court issued a preliminary injunction against enforcement of Section 2(c) of the Second Executive Order (the provision restricting entry into the United States by nationals of Iran, Syria, Yemen, Sudan, Libya, and Somalia). Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The Court ruled that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause challenge. Id. at 564.
56. Speaking at a rally in Nashville, Tennessee, on the same day that the Hawaii Court issued its ruling, President Trump stated that the Second Executive Order was a “watereddown version” of the first one and that “we ought to go back to the first one and go all the way.”30
57. On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld in large part the nationwide injunction issued by this Court. IRAP, 857 F.3d at 606. The government filed a petition for writ of certiorari in the U.S. Supreme Court on June 1, 2017. On the same day, the government filed with the Supreme Court an application for a stay of the injunctions in both IRAP v. Trump and Hawaii v. Trump (the latter of which was still pending on appeal in the Ninth Circuit).
29 The Ninth Circuit lifted the injunction with respect to the review and reporting provisions of the Second Executive Order on June 12, 2017. Hawaii, 859 F.3d at 786. 30 Matt Zapotosky, et al., Federal judge in Hawaii freezes President Trump’s new entry ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyers-faceoff-on-trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c-11e793dc-00f9bdd74ed1_story.html?utm_term=.bf85c7c44a4c.
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58. On June 12, 2017, the Ninth Circuit ruled on the Hawaii injunction, unanimously ruling in favor of the plaintiffs and upholding the injunction in large part. 859 F.3d at 741. Rather than relying on the constitutional grounds cited by the district court, the Ninth Circuit held that portions of the Second Executive Order likely exceeded the President’s authority under the INA. Id.
59. The provisions of the Second Executive Order were originally scheduled to end on June 14, 2017, raising questions about whether the appeal to the Supreme Court might be moot. That day, however, the White House issued a Presidential Memorandum delaying the start date of each of the provisions that had been enjoined by the courts until 72 hours after the injunctions were lifted or stayed as to those provisions.
60. On June 26, 2017, the Supreme Court granted the petitions for certiorari. It consolidated the cases and set them for argument during the first argument session of the Court’s next Term, in October 2017, and ordered the parties to address in their briefing the additional question whether the challenges became moot on June 14. 137 S. Ct. at 2087. The Court also 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.31 The Ninth Circuit reviewed the District of Hawaii’s modified injunction, and in so doing ruled that the district court did not err in including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States within the definition of bona fide close familial relationships.
31 The Supreme Court’s order outlined the requirements for a bona fide relationship: “For individuals, a close familial relationship is required.” For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” 137 S.Ct. at 2088.
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Hawaii v. Trump, __ F.3d __, 2017 WL 3911055 at *9 (9th Cir. Sept. 7, 2017). On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
61. During the litigation prompted by the Second Executive Order, President Trump continued to make official statements underscoring that the Executive Orders, in each iteration, were intended to restrict Muslims from entering the United States. In response to a terrorist attack in London on September 15, 2017, for example, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!”32
D. The Proclamation 62. On September 24, 2017, President Trump issued the Proclamation, which now expands the Muslim ban to a ban of indefinite duration against the entry into the United States of nationals of the listed Muslim-majority countries, including individuals with bona fide relationships with American citizens and Lawful Permanent Residents.33 Unlike the two Executive Orders, there is no time limit in the Proclamation; affected persons are indefinitely banned from entering the United States. 63. The Proclamation expressly refers to the Second Executive Order, does not rescind or nullify the vast majority of the provisions of the Second Executive Order, and imposes
32 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM), https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en. 33 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White House: Office of the Press Secretary (Sept. 24, 2017), Attach. A; https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-andprocesses-detecting-attempted-entry.
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the indefinite ban against entry into the United States as immigrants on nationals of the following six Muslim-majority countries, and broad bans on certain visas, with limited exceptions,34 as follows:
a. Chad: All nationals of Chad are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.35
b. Iran: All nationals of Iran are banned from entry into the United States, except under student and exchange visitor visas (F, M, and J), and such student and exchange visitor visa applicants are subject to unspecified “enhanced screening and vetting requirements.”36
c. Libya: All nationals of Libya are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.37
d. Syria: All nationals of Syria are banned from entry into the United States.38
34 The visa bans outlined in Section 2 of the Proclamation do not apply to lawful permanent residents of the United States; foreign nationals admitted to the United States on or after the applicable effective date of the Proclamation; “any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatictype visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been granted asylum; refugees who have already been admitted; or individuals who have been granted relief under the Convention Against Torture. Id. § 3(b). 35 Id. § 2(a)(ii). 36 Id. § 2(b)(ii). 37 Id. § 2(c)(ii). 38 Id. § 2(e)(ii).
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e. Yemen: All nationals of Yemen are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.39
f. Somalia: All nationals of Somalia are banned from entry into the United States as immigrants. Somali nationals traveling on non-immigrant visas are subject to unspecified “additional scrutiny.”40
64. The Proclamation’s restrictions that apply to individuals who were subject to the operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia, Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or entity in the United States—went into effect on September 24, 2017. All of the Proclamation’s other restrictions are set to go into effect on October 18, 2017.
65. The bans on entry into the United States by nationals of these Muslim-majority countries mean that U.S. citizens and Lawful Permanent Residents cannot reunite in the United States with their spouses, children, and parents who are nationals of countries subject to the Proclamation. And the Proclamation purports to justify its blanket restrictions on immigrant entry from all of these Muslim-majority countries by observing that Lawful Permanent Residents receive “more enduring rights” and are therefore “more difficult to remove than nonimmigrants.”41
66. In an effort to disguise the underlying intent to ban entry of Muslims into the United States, the Proclamation—unlike its predecessor Executive Orders—also imposes
39 Id. § 2(g)(ii). 40 Id. § 2(h)(ii). 41 Id. § 1(h)(ii).
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nominal restrictions relating to nationals of two non-Muslim-majority countries: North Korea and Venezuela. The Proclamation bans immigrant and non-immigrant visas for North Korean nationals (except for the limited exceptions in § 3(b)), but the number of visas issued each year to North Korean nationals is extraordinarily low.42 And unlike the restrictions imposed for the Muslim-majority countries, most nationals of Venezuela generally are not subject to a ban; the Proclamation applies solely to a small group of officials of the Venezuelan government and their immediate family traveling under certain classes of non-immigrant visas.43 The additional travel restrictions involving these two non-Muslim-majority countries are thus without practical effect, and in any event cannot transform the unconstitutional Muslim ban into a permissible nationalsecurity measure.
67. Excluding the makeweight additions of North Korea and Venezuela, which are subject to only negligible impacts, the Proclamation restricts entry of more than 157 million nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Of those nationals, a conservative estimate is that at least 137 million of those people—over 87%—are Muslim.44
42 For example, according to the 2015 Yearbook of Immigration Statistics published by DHS, only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table 26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table3 (last published Dec. 15, 2016). 43 Attach. A § 2(f)(ii). 44 The World Factbook, Country Comparison: Population, CIA https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries subject to the Proclamation, in the total amount of more than 157 million people, as well as the estimated percentages of Muslims in each country. This calculation excludes the entire Muslim population of Somalia, for which information was not available; this suggests that the true
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68. Also to try to disguise its underlying religious purpose, the Proclamation purports to be based on the worldwide review of information-sharing practices, policies, and capabilities of foreign countries directed by the Second Executive Order. The Proclamation states that the Secretary of Homeland Security, with assistance from the Secretary of State and Director of National Intelligence, “developed a baseline for the kinds of information required from foreign governments” regarding individuals seeking entry into the United States,45 and evaluated each country against this baseline.46 The Proclamation states that the Secretary of Homeland Security submitted a report to the President on July 9, 2017, which developed that baseline.47 The Proclamation further explains that the Department of Homeland Security, in coordination with the State Department, “collected data,” “measured performance,” and “evaluated risks” associated with each country that they assessed and evaluated against the baseline, culminating in their identification of 16 countries as being “inadequate” and another 31 as “at risk” of becoming inadequate.48
69. The contents of the Department of Homeland Security’s review and evaluation have not been made public, despite discussion in the Proclamation indicating that portions have been shared with foreign governments during a “50-day engagement period” with other countries
proportion of the nationals subject to the ban who are Muslim is actually considerably higher than 87%. 45 Attach. A § 1(c). 46 Id. §§ 1(d), (e). 47 Id. § 1(c). 48 Id. § 1(d), (e).
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with respect to the baseline,49 and indicating that the review and evaluation contain information similar to that set forth publicly in the First and Second Executive Orders.
70. The government of Chad issued a statement on September 25, 2017, expressing “astonishment” and “incomprehension in the face of the official reasons for [the] decision” to extend the ban against entry to the United States to nationals of Chad.50
71. The Proclamation states that the Secretary of Homeland Security “assesse[d]” seven countries to “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors with respect to the baseline . . . such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.”51 The Secretary submitted a report on September 15, 2017, to the President “recommending entry restrictions and limitations” on nationals of the seven countries, but the specifics of those recommendations are not provided in the Proclamation. He also “assesse[d]” that Iraq “did not meet the baseline” but declared that “additional scrutiny” was recommended nonetheless. Although Somalia was not similarly “assessed” by the Secretary, he determined that “special circumstances” warrant “entry restrictions, limitations, and other measures” for nationals of Somalia.52 The Proclamation states that the President reviewed the report and imposed the “restrictions and limitations” by the proclamation because, in his judgment, they were necessary,
49 Id. § 1(f). 50 Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html. 51 Attach. A § 1(g). 52 Id. § 1(i).
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among other reasons, “to elicit improved identity-management and information-sharing protocols and practices from foreign governments.”53
72. The Proclamation applies to nationals of the listed countries regardless of where they currently reside, including those who reside in other countries that have not been identified as having “‘inadequate’ identity-management protocols, information-sharing practices, and risk factors”—and even if those persons have resided outside their country of origin for their entire lives, and even if those persons reside outside their country of origin because of fear of persecution. This categorical ban on the entry into the United States of more than 157 million nationals of six Muslim-majority nations cannot be justified by a single report prepared in a matter of months on worldwide practices, and cannot be reconciled with the framework of the INA.
73. The Proclamation’s purported reliance on various criteria and imposition of restrictions on North Korean nationals and on a small group of Venezuelan government officials paper over the legal and constitutional defects of the predecessor expressions of the Muslim ban with post-hoc national security justifications. The national-security and other purported rationales for the bans imposed by the Proclamation on millions of Muslims from the several Muslim-majority countries, which disproportionately harm their American Muslim relatives, are not bona fide reasons for the Proclamation.
74. The recently generated national security rationale cannot wipe away the antiMuslim bias that has animated President Trump’s dogged efforts to fulfill his promise to ban Muslims from entering this country. Indeed, the history of the President’s failed attempts to enact his intended Muslim ban through two Executive Orders supports the inference that the
53 Id. § 1(h)(i). 27

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national security report is a pretext. And even if the national security report identifies legitimate vetting and information-sharing issues with respect to the specified countries, the categorical and undifferentiated ban of at least 137 million Muslims is a wildly overbroad response that violates both the INA and the Constitution.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF (Violation of the Immigration and Nationality Act) (All Parties Against All Defendants) 75. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 76. The Immigration and Nationality Act (“INA”) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). 77. The Proclamation violates the INA by discriminating on the basis of nationality. 78. Defendants’ violation causes ongoing harm to Plaintiffs. SECOND CLAIM FOR RELIEF (Exceeding the Executive’s Authority Under the Immigration and Nationality Act) (All Parties Against All Defendants) 79. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 80. Congress established a detailed framework in the INA, 8 U.S.C. § 1182, of specific criteria for “classes of aliens ineligible for visas or admission,” 8 U.S.C. § 1182(a), including on “security and related grounds,” 8 U.S.C. § 1182(a)(3), specifically terrorism, 8 U.S.C. § 1182(a)(3)(B), 1182(a)(3)(F), and foreign policy, 8 U.S.C. § 1182(a)(3)(C). Section 1182 provides for suspension of entry or imposition of restrictions on aliens by the President “for
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such period” as deemed necessary if he “finds” that entry of the aliens or class of aliens “would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The INA further addresses aspects of immigration and other entry into the United States in various provisions throughout the statute.
81. The Proclamation exceeds the Executive’s authority under the INA, including under 8 U.S.C. §§ 1182(f).
82. Defendants’ violation causes ongoing harm to Plaintiffs. THIRD CLAIM FOR RELIEF
(Violation of the Establishment Clause of the First Amendment) (All Plaintiffs Against All Defendants)
83. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
84. The Establishment Clause of the First Amendment to the U.S. Constitution prohibits the government from “differentiat[ing] among religions.” Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson v. Valente, 456 U.S. 228 (1982)).
85. The Establishment Clause further prohibits the government from taking actions that lack a secular purpose or have the principal or primary effect of advancing or inhibiting religion.
86. The Establishment Clause prohibits the government from endorsing or disapproving of a religion or particular religious beliefs.
87. The Proclamation impermissibly discriminates on the basis of religion and constitutes an unconstitutional denominational preference against Muslims. Despite being cloaked in the rhetoric of national security, the Proclamation—like the Executive Orders that preceded it—is intended to and does disproportionately harm Muslims because of their faith. The six countries whose nationals the Proclamation meaningfully restricts—Chad, Iran, Libya,
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Syria, Yemen, and Somalia—are all Muslim-majority countries. The other two countries nominally covered by the ban are North Korea, whose nationals currently receive a vanishingly small number of visas, and Venezuela, whose nationals are affected only if they are family members of government officials “involved in screening and vetting procedures” who are not seeking to immigrate to the United States. Thus the Proclamation’s effects on non-Muslim countries’ nationals are de minimis. The continued outsized effect on Muslim entrants demonstrates that the Proclamation discriminates on the basis of religion.
88. In addition, the Proclamation violates the Establishment Clause because the President’s repeatedly stated intent to ban Muslims from immigrating to or entering the United States and the Proclamation’s direct lineage from and effectuation of those policy statements, demonstrate that the Proclamation lacks a predominantly secular purpose and that it has a principal effect of discriminating against, denigrating, and disfavoring Muslims.
89. Finally, the Proclamation communicates official disapproval of Islam, stigmatizing Plaintiffs and their religion.
90. Defendants’ violation causes ongoing harm to Plaintiffs. FOURTH CLAIM FOR RELIEF
(Violation of the Free Speech Clause of the First Amendment) (Iranian Alliances Across Borders Against All Defendants)
91. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
92. The Free Speech Clause of the First Amendment protects the “right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
93. The Proclamation violates the right of IAAB to receive information and ideas from the Persian scholars (many of whom are nationals of Iran) whom IAAB routinely invites to speaking engagements and other cultural community-building events.
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94. Defendants’ violation causes ongoing harm to IAAB. FIFTH CLAIM FOR RELIEF
(Violation of Equal Protection Under the Fifth Amendment) (All Plaintiffs Against All Defendants)
95. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
96. Plaintiffs are entitled to the protections of the Fifth Amendment. 97. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the law. 98. The Proclamation was motivated by animus and a desire to harm a particular group. 99. The Proclamation has a disparate impact, targeting individuals for discriminatory treatment on the basis of religion and national origin. The discriminatory terms and application of the Proclamation are not justified by legitimate governmental interests, much less by compelling ones. 100. Defendants have violated the equal protection guarantee of the Fifth Amendment. 101. Defendants’ violation causes ongoing harm to Plaintiffs.
SIXTH CLAIM FOR RELIEF (Violation of Procedural Due Process under the Fifth Amendment)
(All Plaintiffs Against All Defendants) 102. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 103. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 104. Congress has granted statutory rights and prescribed procedures applicable to prospective immigrants and refugees. Due process rights attach to those statutory rights.
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105. In addition, United States citizens have a cognizable liberty interest with respect to the ability of specific noncitizen family members to travel to the United States.
106. The Proclamation, in depriving immigrants and refugees of the rights afforded to them by statute, and in depriving United States citizens of travel by specific noncitizen family members to the United States, violates the procedural due process guarantees of the Fifth Amendment.
107. Defendants’ violation causes ongoing harm to Plaintiffs. SEVENTH CLAIM FOR RELIEF
(Violation of the Administrative Procedure Act) (All Plaintiffs Against Defendants Duke, McAleenan, McCamment, Tillerson, and Sessions)
108. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
109. The Administrative Procedure Act (“APA”) requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to a constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A)–(C).
110. The APA requires courts to set aside agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Specifically, the APA requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 5 U.S.C. § 553, 706(2)(D).
111. In instituting the Proclamation, including the requirement that subjects Iranian student and exchange visitor visa applicants to unspecified “enhanced screening and vetting requirements,” Defendants have acted contrary to the constitutional rights of Plaintiffs, and in particular Plaintiff ISF and its members, and in excess of statutory jurisdiction, authority, or
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limitations, or short of a statutory right. Defendants’ actions were taken without observance of procedure required by law. The Proclamation identifies final agency action by the Department of Homeland Security and the Department of State, including the creation of a baseline criteria, collection of data, evaluation and assessment of various practices, procedures, and performance against that baseline, and identification of various countries as inadequate or at risk of being inadequate under that baseline, followed by further information collection, assessment, and identification of countries that continued to be inadequate under that baseline. The agencies took these final actions without complying with the requirements of the Administrative Procedure Act.
112. Defendants’ violation causes ongoing harm to Plaintiffs. EIGHTH CLAIM FOR RELIEF
(Violation of Right to Free Association under the First Amendment) (ISFs Against All Defendants)
113. Plaintiffs repeat and incorporate by reference each and every allegation in the preceding paragraphs as if fully set forth herein.
114. The First Amendment protects the right to associate, as there is a close nexus between the freedoms of speech and association.
115. In instituting the Proclamation, the Defendants prevent Plaintiff ISF from its right to associate. It will be threatened with a reduction in its membership because it will be difficult for students who are Iranian nationals to come to the University of Maryland, and associate with ISF and its membership, hindering its mission of raising awareness about Persian culture, history, and tradition. In so doing, Defendants violate the First Amendment.
116. Defendants’ violation causes ongoing harm to Plaintiff ISF. PRAYER FOR RELIEF
WHEREFORE, all Plaintiffs seek an order and judgment to: 33

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117. Declare that the Proclamation, on its face or as applied, violates the Immigration and Nationality Act, exceeds the Executive’s authority under the Act, and violates the Constitution and laws of the United States;
118. Enter a nationwide injunction enjoining Defendants from: a. Enforcing the Proclamation; b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of any immigrant or nonimmigrant visa; c. Applying the Proclamation to deny or suspend entry or admission of any person; d. Applying the Proclamation to prohibit any person from applying for or receiving any benefit under the Immigration and Nationality Act; e. Denying any person subject to the Proclamation access to legal counsel of his or her choice; f. Applying the Proclamation to instruct any airline or other common carrier to deny passage to any person; g. Applying the Proclamation to impose any penalty on any airline or other common carrier for allowing passage to any person covered by the Proclamation;
119. Order Defendants promptly to provide written guidance to employees, contractors, and agents of DHS, the State Department, U.S. Customs and Border Protection, and all other United States government officials and entities necessary to ensure full and timely compliance with all terms of the order to be entered by the Court;
120. Require Defendants promptly to rescind any guidance, directive, memorandum, or statement interpreting or applying the Proclamation that conflicts with any term of the order to be entered by the Court;
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121. Require Defendants promptly to post a copy of the written guidance required under paragraph 114 on government websites, including state.gov;
122. Require Defendants promptly to update all relevant public guidance, documentation, and FAQs to reflect the terms of the order to be entered by the Court;
123. Require Defendants to instruct the consular officials handling the visa applications of Plaintiffs, their families, and IAAB’s invitees and others attending IAAB programs to print and issue the visas and travel documents within 10 days of the Court’s order;
124. Require Defendants to instruct the relevant officials from the State Department and Department of Homeland Security not to deny visas or entry into the United States to Plaintiffs, their families, or IAAB’s invitees and others attending IAAB programs for any reason directed by or arising from the Proclamation or guidance implementing it;
125. Require Defendants to process without undue delay visa applications submitted by nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
126. Require Defendants to file with the Court, on the tenth day of each month following the entry of the Court’s order, a signed and verified declaration stating:
a. The number of United States visas granted during the previous month to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
b. The number of United States visa applications denied during the previous month to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
c. For each denied visa application under the above subparagraph (b), the identifying information or numbers for the application for the Court’s reference;
d. For each denied visa application under the above subparagraph (b), a detailed explanation of the reason or reasons why the application was denied. The
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explanation under this subsection must state the facts, authorities, and reasoning

relevant to the Defendants’ decision on the application;

127. Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42

U.S.C. § 1988;

128. Any other relief that the Court deems necessary or just to cure the violations

specified in this Complaint or that justice may require.

Dated: October 12, 2017

Respectfully submitted,

/s/ Mark H. Lynch

Johnathan Smith+ Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild+ Andrew Nellis^+ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

Mark H. Lynch (Bar # 12560) Mark W. Mosier* Herbert L. Fenster** José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606) COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 rvantassell@cov.com

+ Admitted pro hac vice. * Pro hac vice application pending.

Attorneys for Plaintiffs 36

Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 37 of 37 ** Pro hac vice application forthcoming. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.
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Attachment A

Case 8:17-cv-02921-TDC Document 37-1 Filed 10/12/17 Page 2 of 13 Federal Register / Vol. 82, No. 186 / Wednesday, September 27, 2017 / Presidential Documents 45161
Presidential Documents
Proclamation 9645 of September 24, 2017
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
By the President of the United States of America
A Proclamation
In Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), on the recommendations of the Secretary of Homeland Security and the Attorney General, I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history. As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat. Our Nation is safer as a result of this work.
Despite those efforts, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries—out of nearly 200 evaluated—remain deficient at this time with respect to their identity-management and informationsharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.
As President, I must act to protect the security and interests of the United States and its people. I am committed to our ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks. Some of the countries with remaining inadequacies face significant challenges. Others have made strides to improve their protocols and procedures, and I commend them for these efforts. But until they satisfactorily address the identified inadequacies, I have determined, on the basis of recommendations from the Secretary of Homeland Security and other members of my Cabinet, to impose certain conditional restrictions and limitations, as set forth more fully below, on entry into the United States of nationals of the countries identified in section 2 of this proclamation.
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the
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interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks and other public-safety threats. Screening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy. They enhance our ability to detect foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat, and they aid our efforts to prevent such individuals from entering the United States.
(b) Information-sharing and identity-management protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States. Governments manage the identity and travel documents of their nationals and residents. They also control the circumstances under which they provide information about their nationals to other governments, including information about known or suspected terrorists and criminal-history information. It is, therefore, the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.
(c) Section 2(a) of Executive Order 13780 directed a ‘‘worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or publicsafety threat.’’ That review culminated in a report submitted to the President by the Secretary of Homeland Security on July 9, 2017. In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:
(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is
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a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.
(d) The Department of Homeland Security, in coordination with the Department of State, collected data on the performance of all foreign governments and assessed each country against the baseline described in subsection (c) of this section. The assessment focused, in particular, on identity management, security and public-safety threats, and national security risks. Through this assessment, the agencies measured each country’s performance with respect to issuing reliable travel documents and implementing adequate identity-management and information-sharing protocols and procedures, and evaluated terrorism-related and public-safety risks associated with foreign nationals seeking entry into the United States from each country.
(e) The Department of Homeland Security evaluated each country against the baseline described in subsection (c) of this section. The Secretary of Homeland Security identified 16 countries as being ‘‘inadequate’’ based on an analysis of their identity-management protocols, information-sharing practices, and risk factors. Thirty-one additional countries were classified ‘‘at risk’’ of becoming ‘‘inadequate’’ based on those criteria.
(f) As required by section 2(d) of Executive Order 13780, the Department of State conducted a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either ‘‘inadequate’’ or ‘‘at risk,’’ to improve their performance with respect to the baseline described in subsection (c) of this section. Those engagements yielded significant improvements in many countries. Twenty-nine countries, for example, provided travel document exemplars for use by Department of Homeland Security officials to combat fraud. Eleven countries agreed to share information on known or suspected terrorists.
(g) The Secretary of Homeland Security assesses that the following countries continue to have ‘‘inadequate’’ identity-management protocols, information-sharing practices, and risk factors, with respect to the baseline described in subsection (c) of this section, such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Secretary of Homeland Security also assesses that Iraq did not meet the baseline, but that entry restrictions and limitations under a Presidential proclamation are not warranted. The Secretary of Homeland Security recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States. In reaching these conclusions, the Secretary of Homeland Security considered the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
(h) Section 2(e) of Executive Order 13780 directed the Secretary of Homeland Security to ‘‘submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.’’ On September 15, 2017, the Secretary of Homeland Security submitted a report to me recommending entry restrictions and limitations on certain nationals of 7 countries determined to be ‘‘inadequate’’ in providing such information and in light of other factors discussed in the report. According to the report, the recommended restrictions would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United
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States. The restrictions also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.
(i) In evaluating the recommendations of the Secretary of Homeland Security and in determining what restrictions to impose for each country, I consulted with appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General. I considered several factors, including each country’s capacity, ability, and willingness to cooperate with our identity-management and information-sharing policies and each country’s risk factors, such as whether it has a significant terrorist presence within its territory. I also considered foreign policy, national security, and counterterrorism goals. I reviewed these factors and assessed these goals, with a particular focus on crafting those country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur. The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States. These restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments; and to advance foreign policy, national security, and counterterrorism objectives.
(ii) After reviewing the Secretary of Homeland Security’s report of September 15, 2017, and accounting for the foreign policy, national security, and counterterrorism objectives of the United States, I have determined to restrict and limit the entry of nationals of 7 countries found to be ‘‘inadequate’’ with respect to the baseline described in subsection (c) of this section: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. These restrictions distinguish between the entry of immigrants and nonimmigrants. Persons admitted on immigrant visas become lawful permanent residents of the United States. Such persons may present national security or public-safety concerns that may be distinct from those admitted as nonimmigrants. The United States affords lawful permanent residents more enduring rights than it does to nonimmigrants. Lawful permanent residents are more difficult to remove than nonimmigrants even after national security concerns arise, which heightens the costs and dangers of errors associated with admitting such individuals. And although immigrants generally receive more extensive vetting than nonimmigrants, such vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies, or presents risks to the national security of the United States. For all but one of those 7 countries, therefore, I am restricting the entry of all immigrants.
(iii) I am adopting a more tailored approach with respect to nonimmigrants, in accordance with the recommendations of the Secretary of Homeland Security. For some countries found to be ‘‘inadequate’’ with respect to the baseline described in subsection (c) of this section, I am restricting the entry of all nonimmigrants. For countries with certain mitigating factors, such as a willingness to cooperate or play a substantial role in combatting terrorism, I am restricting the entry only of certain categories of nonimmigrants, which will mitigate the security threats presented by their entry into the United States. In those cases in which future cooperation seems reasonably likely, and accounting for foreign policy, national security, and counterterrorism objectives, I have tailored the restrictions to encourage such improvements. (i) Section 2(e) of Executive Order 13780 also provided that the ‘‘Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which
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any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.’’ The Secretary of Homeland Security determined that Somalia generally satisfies the information-sharing requirements of the baseline described in subsection (c) of this section, but its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia’s identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States. Based on the considerations mentioned above, and as described further in section 2(h) of this proclamation, I have determined that entry restrictions, limitations, and other measures designed to ensure proper screening and vetting for nationals of Somalia are necessary for the security and welfare of the United States.
(j) Section 2 of this proclamation describes some of the inadequacies that led me to impose restrictions on the specified countries. Describing all of those reasons publicly, however, would cause serious damage to the national security of the United States, and many such descriptions are classified.
Sec. 2. Suspension of Entry for Nationals of Countries of Identified Concern. The entry into the United States of nationals of the following countries is hereby suspended and limited, as follows, subject to categorical exceptions and case-by-case waivers, as described in sections 3 and 6 of this proclamation:
(a) Chad.
(i) The government of Chad is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Chad has shown a clear willingness to improve in these areas. Nonetheless, Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion. Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. At this time, additional information sharing to identify those foreign nationals applying for visas or seeking entry into the United States who represent national security and public-safety threats is necessary given the significant terrorism-related risk from this country.
(ii) The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended.
(b) Iran.
(i) Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism.
(ii) The entry into the United States of nationals of Iran as immigrants and as nonimmigrants is hereby suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
(c) Libya.
(i) The government of Libya is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding on that cooperation, including in the areas of immigration and border management. Libya, nonetheless, faces significant challenges in sharing several types of information, including public-safety
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and terrorism-related information necessary for the protection of the national security and public safety of the United States. Libya also has significant inadequacies in its identity-management protocols. Further, Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. The substantial terrorist presence within Libya’s territory amplifies the risks posed by the entry into the United States of its nationals.
(ii) The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended.
(d) North Korea.
(i) North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.
(ii) The entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended.
(e) Syria.
(i) Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism. Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Syria as immigrants and nonimmigrants is hereby suspended.
(f) Venezuela.
(i) Venezuela has adopted many of the baseline standards identified by the Secretary of Homeland Security and in section 1 of this proclamation, but its government is uncooperative in verifying whether its citizens pose national security or public-safety threats. Venezuela’s government fails to share public-safety and terrorism-related information adequately, fails to satisfy at least one key risk criterion, and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. There are, however, alternative sources for obtaining information to verify the citizenship and identity of nationals from Venezuela. As a result, the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies.
(ii) Notwithstanding section 3(b)(v) of this proclamation, the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures—including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations—and their immediate family members, as nonimmigrants on business (B–1), tourist (B–2), and business/tourist (B–1/B–2) visas, is hereby suspended. Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
(g) Yemen.
(i) The government of Yemen is an important and valuable counterterrorism partner, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Yemen, nonetheless, faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory. The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.
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(ii) The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B–1), tourist (B–2), and business/ tourist (B–1/B–2) visas, is hereby suspended. (h) Somalia. (i) The Secretary of Homeland Security’s report of September 15, 2017, determined that Somalia satisfies the information-sharing requirements of the baseline described in section 1(c) of this proclamation. But several other considerations support imposing entry restrictions and limitations on Somalia. Somalia has significant identity-management deficiencies. For example, while Somalia issues an electronic passport, the United States and many other countries do not recognize it. A persistent terrorist threat also emanates from Somalia’s territory. The United States Government has identified Somalia as a terrorist safe haven. Somalia stands apart from other countries in the degree to which its government lacks command and control of its territory, which greatly limits the effectiveness of its national capabilities in a variety of respects. Terrorists use under-governed areas in northern, central, and southern Somalia as safe havens from which to plan, facilitate, and conduct their operations. Somalia also remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States. The State Department’s 2016 Country Reports on Terrorism observed that Somalia has not sufficiently degraded the ability of terrorist groups to plan and mount attacks from its territory. Further, despite having made significant progress toward formally federating its member states, and its willingness to fight terrorism, Somalia continues to struggle to provide the governance needed to limit terrorists’ freedom of movement, access to resources, and capacity to operate. The government of Somalia’s lack of territorial control also compromises Somalia’s ability, already limited because of poor recordkeeping, to share information about its nationals who pose criminal or terrorist risks. As a result of these and other factors, Somalia presents special concerns that distinguish it from other countries.
(ii) The entry into the United States of nationals of Somalia as immigrants is hereby suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States. Sec. 3. Scope and Implementation of Suspensions and Limitations. (a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspensions of and limitations on entry pursuant to section 2 of this proclamation shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation;
(ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and
(iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation. (b) Exceptions. The suspension of entry pursuant to section 2 of this proclamation shall not apply to: (i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this proclamation;
(iii) any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
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(iv) any dual national of a country designated under section 2 of this proclamation when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C–2 visa for travel to the United Nations, or G–1, G–2, G–3, or G–4 visa; or
(vi) any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture. (c) Waivers. Notwithstanding the suspensions of and limitations on entry set forth in section 2 of this proclamation, a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent with subsections (i) through (iv) of this subsection. The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants. (i) A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
(A) denying entry would cause the foreign national undue hardship;
(B) entry would not pose a threat to the national security or public safety of the United States; and
(C) entry would be in the national interest.
(ii) The guidance issued by the Secretary of State and the Secretary of Homeland Security under this subsection shall address the standards, policies, and procedures for:
(A) determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States;
(B) determining whether the entry of a foreign national would be in the national interest;
(C) addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to the restrictions and limitations imposed by this proclamation;
(D) assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy the requirements of subsection (i) of this subsection; and
(E) determining the special circumstances that would justify granting a waiver under subsection (iv)(E) of this subsection.
(iii) Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa adjudication process will be effective both for the issuance of a visa and for any subsequent entry on that visa, but will leave unchanged all other requirements for admission or entry.
(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to the limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:
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(A) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
(B) the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
(C) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
(D) the foreign national 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, and the denial of entry would cause the foreign national undue hardship;
(E) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(F) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;
(G) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(H) the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
(I) the foreign national is traveling as a United States Government– sponsored exchange visitor; or
(J) the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Sec. 4. Adjustments to and Removal of Suspensions and Limitations. (a) The Secretary of Homeland Security shall, in consultation with the Secretary of State, devise a process to assess whether any suspensions and limitations imposed by section 2 of this proclamation should be continued, terminated, modified, or supplemented. The process shall account for whether countries have improved their identity-management and information-sharing protocols and procedures based on the criteria set forth in section 1 of this proclamation and the Secretary of Homeland Security’s report of September 15, 2017. Within 180 days of the date of this proclamation, and every 180 days thereafter, the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies, shall submit a report with recommendations to the President, through appropriate Assistants to the President, regarding the following:
(i) the interests of the United States, if any, that continue to require the suspension of, or limitations on, the entry on certain classes of nationals of countries identified in section 2 of this proclamation and whether the restrictions and limitations imposed by section 2 of this proclamation should be continued, modified, terminated, or supplemented; and
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(ii) the interests of the United States, if any, that require the suspension of, or limitations on, the entry of certain classes of nationals of countries not identified in this proclamation.
(b) The Secretary of State, in consultation with the Secretary of Homeland Security, the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the head of any other executive department or agency (agency) that the Secretary of State deems appropriate, shall engage the countries listed in section 2 of this proclamation, and any other countries that have information-sharing, identity-management, or risk-factor deficiencies as practicable, appropriate, and consistent with the foreign policy, national security, and public-safety objectives of the United States.
(c) Notwithstanding the process described above, and consistent with the process described in section 2(f) of Executive Order 13780, if the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Director of National Intelligence, determines, at any time, that a country meets the standards of the baseline described in section 1(c) of this proclamation, that a country has an adequate plan to provide such information, or that one or more of the restrictions or limitations imposed on the entry of a country’s nationals are no longer necessary for the security or welfare of the United States, the Secretary of Homeland Security may recommend to the President the removal or modification of any or all such restrictions and limitations. The Secretary of Homeland Security, the Secretary of State, or the Attorney General may also, as provided for in Executive Order 13780, submit to the President the names of additional countries for which any of them recommends any lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
Sec. 5. Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:
(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;
(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and
(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.
(b) The initial report required under subsection (a) of this section shall be submitted within 180 days of the date of this proclamation; the second report shall be submitted within 270 days of the first report; and reports shall be submitted annually thereafter.
(c) The agency heads identified in subsection (a) of this section shall coordinate any policy developments associated with the reports described in subsection (a) of this section through the appropriate Assistants to the President.
Sec. 6. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of this proclamation.
(b) In implementing this proclamation, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including those that provide an opportunity for individuals to enter the United States on the basis of a credible claim of fear of persecution or torture.
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(c) No immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This proclamation shall not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States. Sec. 7. Effective Dates. Executive Order 13780 ordered a temporary pause on the entry of foreign nationals from certain foreign countries. In two cases, however, Federal courts have enjoined those restrictions. The Supreme Court has stayed those injunctions as to foreign nationals who lack a credible claim of a bona fide relationship with a person or entity in the United States, pending its review of the decisions of the lower courts.
(a) The restrictions and limitations established in section 2 of this proclamation are effective at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals who:
(i) were subject to entry restrictions under section 2 of Executive Order 13780, or would have been subject to the restrictions but for section 3 of that Executive Order, and
(ii) lack a credible claim of a bona fide relationship with a person or entity in the United States. (b) The restrictions and limitations established in section 2 of this proclamation are effective at 12:01 a.m. eastern daylight time on October 18, 2017, for all other persons subject to this proclamation, including nationals of: (i) Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and
(ii) Chad, North Korea, and Venezuela. Sec. 8. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the national security, foreign policy, and counterterrorism interests of the United States. Accordingly:
(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and
(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders. Sec. 9. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
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(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of September, in the year of our Lord two thousand seventeen, and of the Independence of the United States of America the two hundred and forty-second.
[FR Doc. 2017–20899 Filed 9–26–17; 11:15 am] Billing code 3295–F7–P
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REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW Washington, DC 20037
JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001
Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS 154 Grand Street New York, NY 10013
IRANIAN STUDENTS’ FOUNDATION, IRANIAN ALLIANCES ACROSS BORDERS AFFILIATE AT THE UNIVERSITY OF MARYLAND COLLEGE PARK 3792 Campus Drive College Park, MD 20742
DOE PLAINTIFFS 1–61
Plaintiffs,
v.

Case No. 17-cv-02921 Judge Chuang
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF

1 All of the individual Plaintiffs moved to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject Plaintiffs to harassment (potentially including violence) and threats. As set forth below, at least three of the “Doe” Plaintiffs reside in Montgomery County, Maryland. For similar reasons, all Plaintiffs moved to proceed anonymously. 2

Case 8:17-cv-02921-TDC Document 37-2 Filed 10/12/17 Page 3 of 41
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue Washington, DC 20500
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue NW Washington, DC 20016
KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner of U.S. Customs and Border Protection 1300 Pennsylvania Avenue NW Washington, DC 20229
JAMES MCCAMENT, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services 20 Massachusetts Avenue NW Washington, DC 20008
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW Washington, DC 20037
JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001
Defendants.
INTRODUCTION
1. Plaintiffs bring this case to challenge President Donald J. Trump’s latest attempt
to implement an unlawful Muslim ban, this time through the “Presidential Proclamation
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United
3

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States by Terrorists or Other Public-Safety Threats” (“the Proclamation”) issued on September 1. 24, 2017 (Attachment A to this Complaint). Plaintiffs are United States citizens
and Lawful Permanent Residents with bona fide relationships with current or potential applicants for immigrant and non-immigrant visas to the United States from the countries affected by the Proclamation, as well as an organizationtwo organizations of similarly situated individuals.
2. President Trump has been consistent and clear about his intention to restrict Muslims from entering the United States. Beginning on December 7, 2015, he called for “a total and complete shutdown of Muslims entering the United States.” Throughout the remainder of his campaign, he pledged to follow through on this promise in terms that explicitly discriminated against Muslims.
3. In the first days of his presidency, President Trump sought to fulfill this campaign promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign
3. Terrorist Entry into the United States” (the “First Executive Order”). On its face, the First Executive Order restricted travel to the United States for 90 days for nationals of seven countries, all Muslim-majority countries. It also put in effect a world-wide ban on refugees, with certain exceptions for those of minority religious faiths. The First Executive Order spurred significant litigation in several district courts and was enjoined on a national basis on February 3, 2017, on a finding that the plaintiffs showed they were likely to succeed on the merits of their constitutional challenges, or, in the alternative, that “they have established at least serious questions going to the merits of their claims and the balance of equities tips sharply in their favor.” Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017). Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017).
4. On March 6, 2017, President Trump rescinded and replaced the First Executive
4

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Order with Executive Order 13780 (“The (the “Second Executive Order”). The Second Executive Order had the same purpose and effect as the first: Both were designed to, and did, prevent Muslims from entering the United States. The major provisions of the two orders were nearly identical. Both included language reflecting bigotry, implicitly associating Muslims with violence and terrorism. The Second Executive Order suffered from the same fundamental constitutional and statutory defects as the first, so it too was blocked by the courts. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554
4. (4th Cir. 2017) (en banc). The Supreme Court narrowed these two preliminary injunctions to enjoin the application of the relevant provisions with respect to visitors and immigrants to the United States only if they have a bona fide relationship with a U.S. individual or entity. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).2 v. Int’l Refugee Assistance Project, 137 S.Ct. 2080 (2017).
5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.
6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and
2 On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
5

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Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.
7. The Proclamation penalizes the nationals of the targeted Muslim-majority countries without adequate determinations or findings as to a detrimental impact on the interests of the United States of any of those particular nationals, and it harms U.S. citizens and U.S. Lawful Permanent Residents with family or business ties to these countries—particularly those with bona fide relationships with current or potential applicants for immigrant- and nonimmigrantnon-immigrant visas to the United States from the countries affected by the Proclamation—as well as organizations of similarly situated individuals.
8. The Proclamation, like the First and Second Executive Orders that preceded it, violates the Immigration and Nationality Act’s prohibition against discrimination in the issuance of immigrant visas, 8 U.S.C. § 1152(a)(1), and exceeds the President’s authority under the Immigration and Nationality Act’s provisions delineating classes of aliens ineligible for visas or admission and the nature of Presidential suspension that is authorized, 8 U.S.C. § 1182.
9. The Proclamation, like the First and Second Executive Orders that preceded it, violates fundamental, dearly held constitutional protections. It violates the guarantees that the government will not establish, favor, discriminate against, denigrate, or condemn any religion; the guarantee of freedom of speech; and the guarantee of equal protection of the law. It betrays our nation’s most central principles and forsakes our common heritage as a country founded in part on the principle of freedom from religious persecution.
10. As a result of the Proclamation, the individual Plaintiffs and some members of the Iranian Students’ Foundation (“ISF”) are cut off from their family members, unable to have their relatives visit under tourist visas or join them as immigrants to the United States. Specifically,
6

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some members of the community ISF serves will not be able to have their families attend

commencement celebrations in the winter and spring. ISF also expects a reduction in

membership because the Proclamation will make it difficult for future Iranian students to come

to the University of Maryland and join the group. The Proclamation violates the Immigration

and Nationality Act, constitutes an exercise of authority in excess of the Act, and violates the

Establishment Clause and due process and equal protection guarantees of the Fifth Amendment.

Plaintiffs Iranian Alliances Across Borders (“IAAB”) and ISF suffer further harms to their

constitutionally-protected rights to engage in the free flow of ideas and association under the

First Amendment.

Clause and due process and equal protection guarantees of the Fifth Amendment. Plaintiff Iranian Alliances Across Borders (“IAAB”) suffers further harms to their constitutionallyprotected right to engage in the free flow of ideas under the First Amendment.
PARTIES

A.

A. The Plaintiffs

11. IAAB is a national organization, founded in 2003 by Iranian-American university

students. Its mission is to strengthen the Iranian diaspora community through leadership and

educational programming that encourages collaboration and solidarity across borders and

between communities. IAAB organizes camps for youths, regional summits, Persian-language

educational events, international conferences on the Iranian diaspora, and other activities, and in

so doing is in the practice of inviting prominent scholars and other participants from outside the

country, including from Iran, to the United States for its events. IAAB affiliates through its

Campus Action Network with a national network of affiliated Iranian-American student groups

and representatives, including groups at the University of Maryland, College Park, one of the

biggest and most active Iranian-American student groups in the nation, and a group at the

University of Maryland in Baltimore.

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12. ISF is an affiliate of IAAB. It is a student group at the University of Maryland, College Park and is one of the oldest Iranian student organizations in the country. ISF has over 30 active student members at any given time, with many more participants attending events and meetings throughout the year. Most of ISF’s members are first generation Iranian-Americans, but some members hold student visas and others are non-Iranian. ISF holds weekly general body meetings, fundraising events, and social events for students. It also regularly organizes conferences and events with attendees and leaders from across the country. ISF hosts cultural celebrations for the Iranian community that are attended by University students, alumni, and members of the community. ISF provides its members and prospective members with opportunities to meet others with similar interests and backgrounds. It also seeks to keep the rich Persian history and culture alive for the descendants of that nation and all interested in the culture.
12. Doe Plaintiff #1 is a United StatesU.S. citizen of Iranian origin who fled religious persecution in Iran. From 2015 to 2016, she lived in Bethesda, Maryland, and was looking forward to building her life there. She met her now-husband in 2015, and they married in 2016. Because her husband does not have permission to reside in the United States, she relocated to the
13. United Arab Emirates on a temporary basis to live with him while his visa application to the United States was being processed. She submitted an I-130 form for her husband in June 2016, and the request was approved on September 20, 2017. She fears that due to the Proclamation, his visa will now be suspended and they will be indefinitely banned from building their life together in Maryland as they had hoped. Their residency status in the United Arab Emirates is uncertain; they can never receive permanent residency and must continue to
8

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reapply for temporary residency every three years. They would face persecution if forced to return to Iran.
13. Doe Plaintiff #2 is a USU.S. citizen of Iranian origin. She was born in the United 14. States and has lived in Maryland ever since. She graduated from the University of Maryland in, College Park in 2017 and continues to live and work in Maryland. In February 2017, she applied for a K-visa for her fiancé, who is Iranian. He completed his interview at the U.S. Embassy in Ankara, Turkey on August 4, 2017, and she is awaiting a final response on his application. If the visa is not granted by October 18, 2017, Doe Plaintiff #2 will be separated indefinitely from her fiancé, and will be forced to choose between the only home she has ever known and the love of her life. her life. 14.15. Doe Plaintiff #3 is a U.S. citizen of Iranian origin. She became a USU.S. citizen in 1994. She has lived in Montgomery County, Maryland for many years and has been a specialeducationspecial-education teacher for Montgomery County Public Schools since 2006. She has a pending I-130 application for her younger brother, who is the only remaining family member in Iran. Her mother, father, and two brothers are all in the United States. If the Proclamation goes into full effect on October 18, processing of her petition will be suspended and she will be indefinitely banned from reuniting here with her brother. 15.16. Doe Plaintiff #4 is a USU.S. citizen of Iranian origin. She has lived in the United States since 1978 and is a resident of Montgomery County, Maryland. She has a pending I-130 application on behalf of her sister, who is 72 years old and remains in Iran. If the Proclamation goes into full effect on October 18, the processing of her application will be suspended and she will be indefinitely banned from reuniting here with her sister.
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16.17. Doe Plaintiff #5 is an elderly Iranian national and a Lawful Permanent Resident of the United States, who resides in Montgomery County, Maryland. She has been in the United States since 2010 and lives with her husband and her U.S. citizen son. She applied to sponsor her second son shortly after she became a resident, and her I-130 application was approved in November 2010. In December 2016, her son received a letter scheduling his interview at the U.S. Embassy in Ankara, Turkey for February 5, 2017. Because of the First Executive Order, that interview was canceled. After the First Executive Order was enjoined by the courts, his interview was rescheduled for March 20, 2017. He completed the interview and is now awaiting final approval to come to the United States. Doe Plaintiff #5 is in desperate need of her son’s presence, as she is wheelchair-bound. Her husband, who is 90 years old, also has significant health problems. Her U.S. citizen son is their only caretaker, and they all need the assistance of her other son. If the Proclamation goes into full effect on October 18, the processing of his application will be suspended and Doe Plaintiff #5 will be indefinitely banned from reuniting with her son.
17.18. Doe Plaintiff #6 is an Iranian national and a Lawful Permanent Resident of the United States, who resides in Maryland. He has lived in the United States for five years and works as an engineer. His wife, who also resides in Maryland, is Iranian and is employed at the National Institutes of Health as a biochemistry researcher. She has a Ph.D. in Chemistry from Johns Hopkins University. They have together made their home in Maryland. His motherinlawin-law and sister-in-law have each applied for business/tourist (B1/B2) visitor visas in order to come visit them, and both had their interviews at the U.S. Embassy in Dubai on January 5, 2017. If their visitor visas are not issued before the Proclamation goes into full effect on October 18, they will be indefinitely banned from coming to the United States to visit their son-in-law
10

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and brother-in-law, as well as their daughter and sister, and they will be separated indefinitely

from some of their closest and dearest family members.

B.

B. The Defendants

18.19. Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity. President Trump issued the Proclamation that is the subject of this lawsuit.

19.20. Defendant Elaine C. Duke is the Acting Secretary of Homeland Security and is

sued in her official capacity. The Department of Homeland Security (“DHS”) is an executive

department of the United States government, headquartered in Washington, DC. DHS was

involved in preparing a report that was cited in the Proclamation and is assigned several

responsibilities regarding implementation and enforcement of the Proclamation. Acting

Secretary Duke is responsible for DHS’s administration of the Immigration and Nationality Act

(“INA”) and its implementation and enforcement of the Proclamation.

20. Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and

Border Protection and is sued in his official capacity. The U.S. Customs and Border Protection (“CBP”) is an administrative agency within DHS, headquartered in Washington, DC. The
21. Proclamation assigns CBP various responsibilities regarding implementation and

enforcement. Acting Commissioner McAleenan is responsible for CBP’s implementation of the

INA and its implementation and enforcement of the Proclamation.

21. Defendant James McCament is the Acting Director of U.S. Citizenship and

Immigration Services and is sued in his official capacity. The U.S. Citizenship and Immigration

22. Services (“USCIS”) is an administrative agency within DHS, headquartered in

Washington, DC. USCIS oversees lawful immigration to the United States. Acting Director

McCament is responsible for USCIS’s implementation of the INA and its implementation and

enforcement of the Proclamation.

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22.23. Defendant Rex W. Tillerson is the Secretary of State and is sued in his official capacity. The Department of State is an executive department of the United States, headquartered in Washington, DC. The State Department consulted on the report prepared by DHS and is responsible for issuing visas and implementing the Proclamation. The Proclamation assigns the State Department various responsibilities regarding implementation and enforcement. Secretary Tillerson oversees the State Department’s activities with respect to the INA and its implementation and enforcement of the Proclamation.
23. Defendant Jefferson Beauregard Sessions III is the Attorney General of the 24. United States and is sued in his official capacity. The Department of Justice (“DOJ”) is an executive department of the United States, headquartered in Washington, DC. The Proclamation assigns the Department of Justice various responsibilities regarding implementation and enforcement. Attorney General Sessions oversees the DOJ’s activities with respect to the INA and the implementation and enforcement of the Proclamation.
JURISDICTION AND VENUE 24.25. The Court has federal question jurisdiction under 28 U.S.C. § 1331. 25. The Court has authority to award declaratory and injunctive relief under the 26. Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. and the Administrative Procedure Act, 5 U.S.C. § 706. 26.27. Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(C).
STATEMENT OF FACTS A. A. President Trump’s Express Intent to Target Muslims for Prohibition
Against, or Restrictions on, Entry into the United States 27.28. President Donald Trump made his intent to impose a “Muslim ban” against those entering the United States a central tenet of his campaign for President and since assuming
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office, he has worked to give effect to this Muslim ban through various measures, culminating in the Proclamation.
28.29. In a series of interviews in the fall of 2015, Mr. Trump stated that he would require Muslims in the United States to register with the government, and he insisted that the country had “absolutely no choice” but to shut down mosques.
29.30. On December 7, 2015, after the attack in San Bernardino, California, Mr. Trump released a written statement on his campaign website calling for a “total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is going on.”3 This original statement invoked invidious stereotypes of Muslims, suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women. He suggested that barring immigration by Muslims was necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”4
30.31. When asked that same day how customs officials would apply such a ban, Candidate Trump said, “[T]hey would say, are you Muslim?” In response, a reporter asked, “[I]f they say yes, they would not be allowed in the country?” Candidate Trump responded, “That’s correct.”5
3 Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015), https://web.archive.org/web/20170508151734/www.donaldjtrump.com/press-releases/donaldj.trump-statement-on-preventing-muslim-immigration. https://web.archive.org/web/20170508151734/www.donaldjtrump.com/press-releases/donald-j.trump-statement-on-preventing-muslim-immigration. 4 Id. 5 Jenna Johnson & Sean Sullivan, Donald Trump explains how his ban on Muslims entering the U.S. would work, WASH. POST (Dec. 8, 2015), https://www.washingtonpost.com/news/postpoliticspost-politics/wp/2015/12/08/donald-trump-
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31.32. This intended Muslim ban became a central talking point of the Trump campaign, promoted by Mr. Trump and his surrogates at campaign events across the country.
32.33. On January 14, 2016, when asked whether he had rethought his “comments about banning Muslims from entering the country,” Mr. Trump responded “No.”6
33.34. On March 9, 2016, Mr. Trump stated in a televised interview that “I think Islam hates us . . . . . and we can’t allow people coming into this country who have this hatred of the United States.”7
34.35. On June 13, 2016, after an attack on a nightclub in Orlando, Florida, Mr. Trump gave a speech in which he said, “I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.” He went on to clarify that he blamed Islam, writ large, for such attacks: “We cannot continue to allow thousands and thousands of people to pour into our country, many of whom have the same thought process as this savage killer.”8 He blamed “Muslim communities” for failing to “turn in the people who they know are bad—and they do know where they are.”9
explains-how-his-ban-on-muslims-entering-the-u-s-wouldworkwouldwork/?utm_term=.c0bda2a45d8b. 6 Gerhard Peters & John T. Wooley, Presidential Candidate Debates: Republican Candidates Debate in North Charleston, South Carolina, The American Presidency Project (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395. 7 Exclusive Interview by Anderson Cooper with Donald Trump, Presidential Candidate, in Miami, Fl. (Mar. 9, 2016), http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. 8 Transcript: Donald Trump’s national security speech, Politico (Jun. 13, 2016, 3:06 PM), http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273. http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273. 9 Id.
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35.36. On July 17, 2016, Mr. Trump was asked to respond to criticism by his running

mate (now the Vice President) that a ban on Muslims entering the country would be

unconstitutional. He responded, “So you call it territories, okay? We’re gonna do territories.”10

36.37. On July 24, 2016, Mr. Trump was asked if this statement constituted a “rollback”

from his intended Muslim ban. His answer was “I don’t think so. I actually don’t think it’s a

rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were

so upset when I used the word Muslim. Oh, you can’t use the word Muslim. . . . . . And I’m

okay with that, because I’m talking territory instead of Muslim.”11

37.38. On October 9, 2016, during a televised presidential debate, Mr. Trump stated that

“The Muslim ban is something that in some form has morphed into a[n] extreme vetting from

certain areas of the world.”12

38.39. These remarks signal Mr. Trump’s search for a pretext to disguise blatant animus

toward Muslims and presage how his administration would carry out his unconstitutional

measure by dressing it up as a bona fide national security measure.

B.

B. The First Executive Order

39. On January 27, 2017, a week after assuming office, President Trump signed

10 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (Jul. 17, 2016), http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/. http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/. 11 Interview by Chuck Todd with Donald Trump, Presidential Candidate on Meet the Press (Jul. 24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-242016n615706. http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016-n615706. 12 Gerhard Peters & John T. Wooley, Presidential Debate at Washington University in St. Louis, Missouri, The American Presidency Project (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038. http://www.presidency.ucsb.edu/ws/index.php?pid=119038.
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40. Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”13 At the time of signing, his original December 7, 2015, statement calling for a “total shutdown” of Muslim entrants remained live on his campaign website.
40. At the signing ceremony, President Trump read the order’s title, and stated, “We all know what that means.”14 The next day, President Trump’s advisor and vice chair of his transition team, Rudy Giuliani, stated that the First Executive Order was the result of an instruction by President Trump to him to find a way to implement a “Muslim ban” “legally.”15
Three days later, on January 30, President Trump referred on his Twitter account to the First 41. Executive Order as “the ban.”16 41.42. The First Executive Order banned entry of nationals of seven Muslim-majority
countries17 for 90 days, suspended the entire U.S. Refugee Admissions Program for 120 days,
13 82 Fed. Reg. 8977 (Jan. 27, 2017). 14 Matt Shuham, Trump Signs Executive Order Laying Out ‘Extreme Vetting,’ Talking Points Memo (Jan. 27, 2017, 4:56 PM), http://talkingpointsmemo.com/livewire/trump-signsvettingexecutive-order. http://talkingpointsmemo.com/livewire/trump-signs-vetting-executiveorder. 15 See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ The Hill (Jan. 29, 2017, 8:48 AM), http://thehill.com/homenews/administration/316726-giulianitrumpasked-me-how-to-do-a-muslim-ban-legally. http://thehill.com/homenews/administration/316726-giuliani-trump-asked-me-how-to-do-amuslim-ban-legally. 16 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017 5:31AM), https://twitter.com/realdonaldtrump/status/826060143825666051?lang=en (“If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week. A lot of bad ‘dudes’ out there!”). 17 Some of the targeted countries have far more than simple Muslim majority. In Iran and Yemen for instance, over 99% of the population is Muslim. The World Factbook: Middle East: Iran, CIA, https://www.cia.gov/library/publications/the-worldfactbook/geos/ir.htmlhttps://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (last visited October 2, 2017); The World Factbook: Middle East: Yemen, CIA, https://www.cia.gov/library/publications/the-world-
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established a policy of prioritizing certain religious denominations over others upon resuming the Refugee program, and indefinitely barred entry of all Syrian refugees.18 Refugee program, and indefinitely barred entry of all Syrian refugees.19
42. In its “Purpose” section, the First Executive Order explicitly relied on negative stereotypes about Islam, stating that the United States should not admit individuals who “place violent ideologies over American law” or engage in acts of violence “including ‘honor killings,’
43. [or] other forms of violence against women.”20 43.44. An overt preference for Christian refugees was one of the objectives of the First Executive Order. Section 5(b) directed the Secretary of State, in consultation with the Secretary of Homeland Security, to give priority to refugee claims made by persons fleeing “religiousbasedreligious-based persecution,” but only if the claimant belonged to a “minority religion in the individual’s country of nationality.”21 Although this exception was not expressly limited to religious minorities residing in Muslim-majority countries, President Trump explained in an interview that this exception was intended to give priority to Christian refugees over their Muslim counterparts.22
factbook/geos/ym.htmlhttps://www.cia.gov/library/publications/the-worldfactbook/geos/ym.html (last visited October 2, 2017). 18 See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c). 19 See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c). 20 Id. § 1. 21 Id. § 5(e). 22 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-presidenttrumpsays-persecuted-christians-will-be-given-priority-as-refugees. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
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44.45. Like the current Proclamation, the First Executive Order attempted to mask its unconstitutional purposes with national security and foreign policy rationales, suggesting that its implementation would protect the country from terrorists.
45.46. The First Executive Order was immediately met with a series of legal challenges across the country. The day after the First Executive Order was issued, the U.S. District Court for the Eastern District of New York granted an Emergency Motion for Stay of Removal, enjoining the government from removing individuals with approved applications under the Refugee Admissions Program, holders of visas, and other individuals legally authorized to enter the United States from the seven countries designated in the First Executive Order. Darweesh v. Trump, No. 1:17-cv-00480, ECF 8 at 2 (E.D.N.Y. Jan. 28, 2017). It did so on the basis that the petitioners had a strong likelihood of success in establishing that removal would violate their rights to due process and equal protection, and that there was imminent danger of “substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to” the First Executive Order. Id.
46. On February 3, 2017, the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order enjoining enforcement of several sections of the First Executive Order on a nationwide basis. Washington v. Trump, No. 2:17-cv-00141-JLR,
47. ECF 52 at 5 (W.D. Wash. Feb. 3, 2017). That order was upheld by the U.S. Court of Appeals for the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017).
47.48. During the pendency of the Washington case, the U.S. District Court for the Eastern District of Virginia preliminarily enjoined Section 3(c) of the First Executive Order, finding that the statements made by President Trump and his Administration demonstrated an intent to ban Muslims from the United States, and that the plaintiffs were therefore likely to
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succeed on the merits of their Establishment Clause claims. See Aziz v. Trump, No. 1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).
48. One week after the Ninth Circuit’s decision in Washington v. Trump, the 49. Department of Justice informed the Ninth Circuit that the President intended to rescind the First Executive Order and replace it with a “new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” Defendants-Appellants’ Supplemental Brief on En Banc Consideration, Washington v. Trump, No. 17-35105, ECF 154 at 4 (9th Cir. Feb. 16, 2017). 49.50. On February 21, 2017, a White House Senior Policy Advisor elaborated during an interview that the intended revised executive order would include “mostly minor technical differences” but “[f]undamentally, you’re still going to have the same basic policy outcome for the country.”23 50.51. On February 24, 2017, the Associated Press obtained a DHS report prepared at the request of the Acting Under Secretary for Intelligence and Analysis.2224 That report found
23 Matt Zapotosky, A new travel ban with ‘mostly minor technical differences’? That probably won’t cut it, analysts say, Wash. Post (Feb. 22, 2017), https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-22, 2017), https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostlyminortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f91811e6-bf01-d47f8cf9b643_story.html. 24 Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24, 2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravel-bantrump/98374184/.
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that citizenship is “likely an unreliable indicator” of terrorist activity,2325 despite the First

Executive Order’s supposed purpose to protect the nation from foreign terrorists.

C.

C. The Second Executive Order

51.52. On March 6, 2017, President Trump issued a new executive order with the same

name.2426 The Second Executive Order removed Iraq from the list of countries from which

nationals were categorically banned from entry into the United States, but subjected Iraqis

entering the United States to enhanced vetting.2527 The Second Executive Order also eliminated

the priority for refugees of minority religions but still referenced “acts of gender-based violence

against women, including so-called ‘honor killings’ in the United States by foreign nationals.”26

28

52.53. The Second Executive Order also directed the Secretary of Homeland Security to “conduct a worldwide review” to determine what information the U.S. government needed from foreign governments to adjudicate visa applications.27 29
53. On March 15, 2017, the U.S. District Court for the District of Hawaii issued a nationwide temporary restraining order against Sections 2 and 6 of the Second Executive Order.

minortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6f91811e6-bf01-d47f8cf9b643_story.html. 22 Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24, 2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravelbantrump/98374184/. 23 Id.
25 Id. 26 82 Fed. Reg. 13209 (March 6, 2017). 27 Id. § 4. 28 Id. § 11(a)(iii). 29 Id. § 2(a).
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24 82 Fed. Reg. 13209 (March 6, 2017). 25 Id. § 4. 26 Id. § 11(a)(iii). 27 Id. § 2(a).
54. Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).30 It did so on the basis that the plaintiffs “met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim.” Id. at 1123.
54. The next day, this Court issued a preliminary injunction against enforcement of Section 2(c) of the Second Executive Order (the provision restricting entry into the United States by nationals of Iran, Syria, Yemen, Sudan, Libya, and Somalia). Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The Court ruled that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause challenge. 55. Id. at 564. 55.56. Speaking at a rally in Nashville, Tennessee, on the same day that the Hawaii Court issued its ruling, President Trump stated that the Second Executive Order was a “watereddownwatered-down version” of the first one and that “we ought to go back to the first one and go all the way.”31
30 The Ninth Circuit lifted the injunction with respect to the review and reporting provisions of the Second Executive Order on June 12, 2017. Hawaii, 859 F.3d at 786. 31 Matt Zapotosky, et al., Federal judge in Hawaii freezes President Trump’s new entry ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyersfaceoff-on-trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c11e793dc-00f9bdd74ed1 story.html?utm term=.bf85c7c44a4c. https://www.washingtonpost.com/local/social-issues/lawyers-face-off-on-trump-travel-ban-inmd-court-wednesday-morning/2017/03/14/b2d24636-090c-11e7-93dc00f9bdd74ed1_story.html?utm_term=.bf85c7c44a4c.
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56.57. On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld in large part the nationwide injunction issued by this Court. IRAP, 857 F.3d at 606. The government filed a petition for writ of certiorari in the U.S. Supreme Court on June 1, 2017. On the same day, the government filed with the Supreme Court an application for a stay of the injunctions in both IRAP v. Trump and Hawaii v. Trump (the latter of which was still pending on appeal in the Ninth Circuit).
57.58. On June 12, 2017, the Ninth Circuit ruled on the Hawaii injunction, unanimously ruling in favor of the plaintiffs and upholding the injunction in large part. 859 F.3d at 741. Rather than relying on the constitutional grounds cited by the district court, the Ninth Circuit held that portions of the Second Executive Order likely exceeded the President’s authority under the INA. Id.
58.59. The provisions of the Second Executive Order were originally scheduled to end on June 14, 2017, raising questions about whether the appeal to the Supreme Court might be moot. That day, however, the White House issued a Presidential Memorandum delaying the start date of each of the provisions that had been enjoined by the courts until 72 hours after the injunctions were lifted or stayed as to those provisions.
59.60. On June 26, 2017, the Supreme Court granted the petitions for certiorari. It consolidated the cases and set them for argument during the first argument session of the Court’s next Term, in October 2017, and ordered the parties to address in their briefing the additional question whether the challenges became moot on June 14. 137 S. Ct. at 2087. The Court also 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. The portions of the injunctions not subject to the stay remain in effect,
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and the Second Executive Order therefore cannot be enforced against foreign nationals who do have such a “bona fide relationship.”32 Id.33 The Ninth Circuit reviewed the District of Hawaii’s modified injunction, and in so doing ruled that the district court did not err in including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States within the definition of bona fide close familial relationships. Hawaii v. Trump, __ F.3d __, 2017 WL 3911055 at *9 (9th Cir. Sept. September 7, 2017). 7, 2017). On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
60.61. During the litigation prompted by the Second Executive Order, President Trump continued to make official statements underscoring that the Executive Orders, in each iteration, were intended to restrict Muslims from entering the United States. In response to a terrorist attack in London on September 15, 2017, for example, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!”34
32 The Supreme Court’s order outlined the requirements for a bona fide relationship: “For individuals, a close familial relationship is required.” For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” 137 S.Ct. at 2088. 33 The Supreme Court’s order outlined the requirements for a bona fide relationship: “For individuals, a close familial relationship is required.” For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” 137 S.Ct. at 2088. 34 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM), https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en. https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en.
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D.

D. The Proclamation

61.62. On September 24, 2017, President Trump issued the Proclamation, which now

expands the Muslim ban to a ban of indefinite duration against the entry into the United States of

nationals of the listed Muslim-majority countries, including individuals with bona fide

relationships with American citizens and Lawful Permanent Residents.35 Unlike the two

Executive Orders, there is no time limit in the Proclamation; affected persons are indefinitely

banned from entering the United States.

62.63. The Proclamation expressly refers to the Second Executive Order, does not

rescind or nullify the vast majority of the provisions of the Second Executive Order, and imposes

the indefinite ban against entry into the United States as immigrants on nationals of the following

six Muslim-majority countries, and broad bans on certain visas, with limited exceptions,36 as

follows:

35 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White House: Office of the Press Secretary (Sept. 24, 2017), Attach. A; https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilitiesandprocesses-detecting-attempted-entry. https://www.whitehouse.gov/the-pressoffice/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry. 36 The visa bans outlined in Section 2 of the Proclamation do not apply to lawful permanent residents of the United States; foreign nationals admitted to the United States on or after the applicable effective date of the Proclamation; “any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatictypediplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been granted asylum; refugees who have already been admitted; or individuals who have been granted relief under the Convention Against Torture. Id. § 3(b).
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a. Chad: All nationals of Chad are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.37
b. Iran: All nationals of Iran are banned from entry into the United States, except under student and exchange visitor visas (F, M, and J), and such student and exchange visitor visa applicants are subject to unspecified “enhanced screening and vetting requirements.”38
c. Libya: All nationals of Libya are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.39
d. Syria: All nationals of Syria are banned from entry into the United States.40 e. Yemen: All nationals of Yemen are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.41 f. Somalia: All nationals of Somalia are banned from entry into the United States as immigrants. Somali nationals traveling on non-immigrant visas are subject to unspecified “additional scrutiny.”42
37 Id. § 2(a)(ii). 38 Id. § 2(b)(ii). 39 Id. § 2(c)(ii). 40 Id. § 2(e)(ii). 41 Id. § 2(g)(ii). 42 Id. § 2(h)(ii).
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63.64. The Proclamation’s restrictions that apply to individuals who were subject to the operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia, Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or entity in the United States—went into effect on September 24, 2017. All of the Proclamation’s other restrictions are set to go into effect on October 18, 2017.
64.65. The bans on entry into the United States by nationals of these Muslim-majority countries mean that U.S. citizens and Lawful Permanent Residents cannot reunite in the United States with their spouses, children, and parents who are nationals of countries subject to the Proclamation. And the Proclamation purports to justify its blanket restrictions on immigrant entry from all of these Muslim-majority countries by observing that Lawful Permanent Residents receive “more enduring rights” and are therefore “more difficult to remove than nonimmigrants.”43
65.66. In an effort to disguise the underlying intent to ban entry of Muslims into the United States, the Proclamation—unlike its predecessor Executive Orders—also imposes nominal restrictions relating to nationals of two non-Muslim-majority countries: North Korea and Venezuela. The Proclamation bans immigrant and non-immigrant visas for North Korean nationals (except for the limited exceptions in § 3(b)), but the number of visas issued each year
43 Id. § 1(h)(ii).
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to North Korean nationals is extraordinarily low.4445 And unlike the restrictions imposed for the Muslim-majority countries, most nationals of Venezuela generally are not subject to a ban; the Proclamation applies solely to a small group of officials of the Venezuelan government and their immediate family traveling under certain classes of non-immigrant visas.46 The additional travel restrictions involving these two non-Muslim-majority countries are thus without practical effect, and in any event cannot transform the unconstitutional Muslim ban into a permissible nationalsecuritynational-security measure.
66.67. Excluding the makeweight additions of North Korea and Venezuela, which are subject to only negligible impacts, the Proclamation restricts entry of more than 157 million nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Of those nationals, a conservative estimate is that at least 137 million of those people—over 87%—are Muslim.47
44 For example, according to the 2015 Yearbook of Immigration Statistics published by DHS, only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table 26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 45 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table3 (last published Dec. 15, 2016). For example, according to the 2015 Yearbook of Immigration Statistics published by DHS, only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table 26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigration-statistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigration-statistics/yearbook/2015/table3 (last published Dec. 15, 2016). 46 Attach. A § 2(f)(ii). 47 The World Factbook, Country Comparison: Population, CIA https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last The World Factbook, Country Comparison: Population, CIA
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67.68. Also to try to disguise its underlying religious purpose, the Proclamation purports to be based on the worldwide review of information-sharing practices, policies, and capabilities of foreign countries directed by the Second Executive Order. The Proclamation states that the Secretary of Homeland Security, with assistance from the Secretary of State and Director of National Intelligence, “developed a baseline for the kinds of information required from foreign governments” regarding individuals seeking entry into the United States,44 and evaluated each country against this baseline.45 48 and evaluated each country against this baseline.49 The Proclamation states that the Secretary of Homeland Security submitted a report to the President on July 9, 2017, which developed that baseline.50 The Proclamation further explains that the Department of Homeland Security, in coordination with the State Department, “collected data,” “measured performance,” and “evaluated risks” associated with each country that they assessed and evaluated against the baseline, culminating in their identification of 16 countries as being “inadequate” and another 31 as “at risk” of becoming inadequate.51
68.69. The contents of the Department of Homeland Security’s review and evaluation have not been made public, despite discussion in the Proclamation indicating that portions have been shared with foreign governments during a “50-day engagement period” with other countries
https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries subject to the Proclamation, in the total amount of more than 157 million people, as well as the estimated percentages of Muslims in each country. This calculation excludes the entire Muslim population of Somalia, for which information was not available; this suggests that the true proportion of the nationals subject to the ban who are Muslim is actually considerably higher than 87%. 48 Attach. A § 1(c). 49 Id. §§ 1(d), (e). 50 Id. § 1(c). 51 Id. § 1(d), (e).
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with respect to the baseline,4652 and indicating that the review and evaluation contain information
similar to that set forth publicly in the First and Second Executive Orders.
69.70. The government of Chad issued a statement on September 25, 2017, expressing
“astonishment” and “incomprehension in the face of the official reasons for [the] decision” to extend the ban against entry to the United States to nationals of Chad.47 53
visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries subject to the Proclamation, in the total amount of more than 157 million people, as well as the estimated percentages of Muslims in each country. This calculation excludes the entire Muslim population of Somalia, for which information was not available; this suggests that the true proportion of the nationals subject to the ban who are Muslim is actually considerably higher than 87%. 44 Attach. A § 1(c). 45 Id. §§ 1(d), (e). 46 Id. § 1(f). 47 Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html.
70. The Proclamation states that the Secretary of Homeland Security
“assesse[d]” seven countries to “have ‘inadequate’ identity-management protocols,
information-sharing practices, and risk factors with respect to the baseline . . . such that
entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.”54 The Secretary submitted a report on September 15,
2017, to the President “recommending entry restrictions and limitations” on nationals of
the seven countries, but the specifics of those recommendations are not provided in the
52 Id. § 1(f). 53 Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html. 54 Attach. A § 1(g).
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Proclamation. He also “assesse[d]” that Iraq “did not meet the baseline” but declared that “additional scrutiny” was recommended nonetheless. Although Somalia was not similarly “assessed” by the Secretary, he determined that “special circumstances” warrant “entry restrictions, limitations, and other measures” for nationals of 71. Somalia.55 The Proclamation states that the President reviewed the report and imposed the “restrictions and limitations” by the proclamation because, in his judgment, they were necessary, among other reasons, “to elicit improved identity-management and informationsharing protocols and practices from foreign governments.”56
71. The Proclamation applies to nationals of the listed countries regardless of where they currently reside, including those who reside in other countries that have not been identified as having “‘inadequate’ identity-management protocols, informationsharing practices, and risk factors”—and even if those persons have resided outside their country of origin for their entire lives, and even if those persons reside outside their country of origin because of fear of persecution. This categorical ban on the entry into the United States of more than 157 million nationals of six Muslim-majority nations cannot be justified by a single report prepared in a matter of months on worldwide practices, and cannot be reconciled with the framework of the 72. INA. 72.73. The Proclamation’s purported reliance on various criteria and imposition of restrictions on North Korean nationals and on a small group of Venezuelan government officials paper over the legal and constitutional defects of the predecessor expressions of the Muslim ban
55 Id. § 1(i). 56 Id. § 1(h)(i).
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with post-hoc national security justifications. The national-security and other purported rationales for the bans imposed by the Proclamation on millions of Muslims from the several Muslim-majority countries, which disproportionately harm their American Muslim relatives, are not bona fide reasons for the Proclamation.
73.74. The recently generated national security rationale cannot wipe away the antiMuslimanti-Muslim bias that has animated President Trump’s dogged efforts to fulfill his promise to ban Muslims from entering this country. Indeed, the history of the President’s failed attempts to enact his intended Muslim ban through two Executive Orders supports the inference that the national security report is a pretext. And even if the national security report identifies legitimate vetting and information-sharing issues with respect to the specified countries, the categorical and undifferentiated ban of at least 137 million Muslims is a wildly overbroad response that violates both the INA and the Constitution.
CAUSES OF ACTION COUNT I FIRST CLAIM FOR RELIEF (Violation of the Immigration and Nationality Act)
(All Parties Against All Defendants) 74.75. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 75.76. The Immigration and Nationality Act (“INA”) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). 76.77. The Proclamation violates the INA by discriminating on the basis of nationality. 77.78. Defendants’ violation causes ongoing harm to Plaintiffs.
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COUNT II SECOND CLAIM FOR RELIEF (Exceeding the Executive’s Authority Under the Immigration and Nationality Act)
(All Parties Against All Defendants) 78.79. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 79. Congress established a detailed framework in the INA, 8 U.S.C. § 1182, of specific criteria for “classes of aliens ineligible for visas or admission,” 8 U.S.C. § 1182(a), including on “security and related grounds,” 8 U.S.C. § 1182(a)(3), specifically terrorism, 8 80. U.S.C. § 1182(a)(3)(B), 1182(a)(3)(F), and foreign policy, 8 U.S.C. § 1182(a)(3)(C). Section 1182 provides for suspension of entry or imposition of restrictions on aliens by the President “for such period” as deemed necessary if he “finds” that entry of the aliens or class of aliens “would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The INA further addresses aspects of immigration and other entry into the United States in various provisions throughout the statute. 80.81. The Proclamation exceeds the Executive’s authority under the INA, including under 8 U.S.C. §§ 1182(f). 81.82. Defendants’ violation causes ongoing harm to Plaintiffs.
COUNT III THIRD CLAIM FOR RELIEF (Violation of the Establishment Clause of the First Amendment)
(All Plaintiffs Against All Defendants) 82.83. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 83.84. The Establishment Clause of the First Amendment to the U.S. Constitution prohibits the government from “differentiat[ing] among religions.” Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson v. Valente, 456 U.S. 228 (1982)).
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84.85. The Establishment Clause further prohibits the government from taking actions that lack a secular purpose or have the principal or primary effect of advancing or inhibiting religion.
85.86. The Establishment Clause prohibits the government from endorsing or disapproving of a religion or particular religious beliefs.
86. The Proclamation impermissibly discriminates on the basis of religion and constitutes an unconstitutional denominational preference against Muslims. Despite being cloaked in the rhetoric of national security, the Proclamation—like the Executive Orders that preceded it—is intended to and does disproportionately harm Muslims because of their faith.
87. The six countries whose nationals the Proclamation meaningfully restricts—Chad, Iran, Libya, Syria, Yemen, and Somalia—are all Muslim-majority countries. The other two countries nominally covered by the ban are North Korea, whose nationals currently receive a vanishingly small number of visas, and Venezuela, whose nationals are affected only if they are family members of government officials “involved in screening and vetting procedures” who are not seeking to immigrate to the United States. Thus the Proclamation’s effects on non-Muslim countries’ nationals are de minimis. The continued outsized effect on Muslim entrants demonstrates that the Proclamation discriminates on the basis of religion.
87. In addition, the Proclamation violates the Establishment Clause because the 88. President’s repeatedly stated intent to ban Muslims from immigrating to or entering the United States and the Proclamation’s direct lineage from and effectuation of those policy statements, demonstrate that the Proclamation lacks a predominantly secular purpose and that it has a principal effect of discriminating against, denigrating, and disfavoring Muslims.
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88.89. Finally, the Proclamation communicates official disapproval of Islam, stigmatizing Plaintiffs and their religion.
89.90. Defendants’ violation causes ongoing harm to Plaintiffs. COUNT IV FOURTH CLAIM FOR RELIEF
(Violation of the Free Speech Clause of the First Amendment) (Iranian Alliances Across Borders Against All Defendants)
90.91. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
91.92. The Free Speech Clause of the First Amendment protects the “right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
92.93. The Proclamation violates the right of IAAB to receive information and ideas from the Persian scholars (many of whom are nationals of Iran) whom IAAB routinely invites to speaking engagements and other cultural community-building events.
93.94. Defendants’ violation causes ongoing harm to IAAB. COUNT V FIFTH CLAIM FOR RELIEF
(Violation of Equal Protection Under the Fifth Amendment) (All Plaintiffs Against All Defendants)
94.95. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
95.96. Plaintiffs are entitled to the protections of the Fifth Amendment. 96.97. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the law. 97.98. The Proclamation was motivated by animus and a desire to harm a particular group. 98.99. The Proclamation has a disparate impact, targeting individuals for discriminatory treatment on the basis of religion and national origin. The discriminatory terms and application
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of the Proclamation are not justified by legitimate governmental interests, much less by

compelling ones.

99.100.

Defendants have violated the equal protection guarantee of the Fifth

Amendment.

100.101.

Defendants’ violation causes ongoing harm to Plaintiffs.

COUNT VI SIXTH CLAIM FOR RELIEF (Violation of Procedural Due Process under the Fifth Amendment)
(All Plaintiffs Against All Defendants)

101.102.

Plaintiffs repeat and incorporate by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.

102.103.

The Due Process Clause of the Fifth Amendment prohibits the federal

government from depriving individuals of their liberty interests without due process of law.

103.104.

Congress has granted statutory rights and prescribed procedures applicable

to prospective immigrants and refugees. Due process rights attach to those statutory rights.

104.105.

In addition, United States citizens have a cognizable liberty interest with

respect to the ability of specific noncitizen family members to travel to the United States.

105.106.

The Proclamation, in depriving immigrants and refugees of the rights

afforded to them by statute, and in depriving United States citizens of travel by specific

noncitizen family members to the United States, violates the procedural due process guarantees

of the Fifth Amendment.

Amendment. 106.107.

Defendants’ violation causes ongoing harm to Plaintiffs.

SEVENTH CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (All Plaintiffs Against Defendants Duke, McAleenan, McCamment, Tillerson, and Sessions)

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108. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
109. The Administrative Procedure Act (“APA”) requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to a constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A)–(C).
110. The APA requires courts to set aside agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Specifically, the APA requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 5 U.S.C. § 553, 706(2)(D).
111. In instituting the Proclamation, including the requirement that subjects Iranian student and exchange visitor visa applicants to unspecified “enhanced screening and vetting requirements,” Defendants have acted contrary to the constitutional rights of Plaintiffs, and in particular Plaintiff ISF and its members, and in excess of statutory jurisdiction, authority, or limitations, or short of a statutory right. Defendants’ actions were taken without observance of procedure required by law. The Proclamation identifies final agency action by the Department of Homeland Security and the Department of State, including the creation of a baseline criteria, collection of data, evaluation and assessment of various practices, procedures, and performance against that baseline, and identification of various countries as inadequate or at risk of being inadequate under that baseline, followed by further information collection, assessment, and identification of countries that continued to be inadequate under that baseline. The agencies took
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these final actions without complying with the requirements of the Administrative Procedure

Act.

112. Defendants’ violation causes ongoing harm to Plaintiffs.

EIGHTH CLAIM FOR RELIEF (Violation of Right to Free Association under the First Amendment)
(ISFs Against All Defendants)
113. Plaintiffs repeat and incorporate by reference each and every allegation in the

preceding paragraphs as if fully set forth herein.

114. The First Amendment protects the right to associate, as there is a close nexus

between the freedoms of speech and association.

115. In instituting the Proclamation, the Defendants prevent Plaintiff ISF from its right

to associate. It will be threatened with a reduction in its membership because it will be difficult

for students who are Iranian nationals to come to the University of Maryland, and associate with

ISF and its membership, hindering its mission of raising awareness about Persian culture,

history, and tradition. In so doing, Defendants violate the First Amendment.

116. Defendants’ violation causes ongoing harm to Plaintiff ISF.

PRAYER FOR RELIEF

WHEREFORE, all Plaintiffs seek an order and judgment to:

107.117.

Declare that the Proclamation, on its face or as applied, violates the

Immigration and Nationality Act, exceeds the Executive’s authority under the Act, and violates

the Constitution and laws of the United States;

Constitution and laws of the United States;

108.118.

Enter a nationwide injunction enjoining Defendants from:

a. Enforcing the Proclamation;

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b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of

any immigrant or nonimmigrant visa;

c. Applying the Proclamation to deny or suspend entry or admission of any person;

d. Applying the Proclamation to prohibit any person from applying for or receiving

any benefit under the Immigration and Nationality Act;

e. Denying any person subject to the Proclamation access to legal counsel of his or

her choice;

f. Applying the Proclamation to instruct any airline or other common carrier to deny

passage to any person;

g. Applying the Proclamation to impose any penalty on any airline or other common

carrier for allowing passage to any person covered by the Proclamation;

109.119.

Order Defendants promptly to provide written guidance to employees,

contractors, and agents of DHS, the State Department, U.S. Customs and Border Protection, and

all other United States government officials and entities necessary to ensure full and timely

compliance with all terms of the order to be entered by the Court;

110.120.

Require Defendants promptly to rescind any guidance, directive,

memorandum, or statement interpreting or applying the Proclamation that conflicts with any

term of the order to be entered by the Court;

111.121.

Require Defendants promptly to post a copy of the written guidance

required under paragraph 114 on government websites, including state.gov;

112.122.

Require Defendants promptly to update all relevant public guidance,

documentation, and FAQs to reflect the terms of the order to be entered by the Court;

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113.123.

Require Defendants to instruct the consular officials handling the visa

applications of Plaintiffs, their families, and IAAB’s invitees and others attending IAAB

programs to print and issue the visas and travel documents within 10 days of the Court’s order;

114.124.

Require Defendants to instruct the relevant officials from the State

Department and Department of Homeland Security not to deny visas or entry into the United

States to Plaintiffs, their families, or IAAB’s invitees and others attending IAAB programs for

any reason directed by or arising from the Proclamation or guidance implementing it;

115.125.

Require Defendants to process without undue delay visa applications

submitted by nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;

116.126.

Require Defendants to file with the Court, on the tenth day of each month

following the entry of the Court’s order, a signed and verified declaration stating:

a. The number of United States visas granted during the previous month to nationals

of Chad, Iran, Libya, Syria, Yemen, and Somalia;

b. The number of United States visa applications denied during the previous month

to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;

c. For each denied visa application under the above subparagraph (b), the identifying

information or numbers for the application for the Court’s reference;

d. For each denied visa application under the above subparagraph (b), a detailed

explanation of the reason or reasons why the application was denied. The

explanation under this subsection must state the facts, authorities, and reasoning

relevant to the Defendants’ decision on the application;

117. Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42

127. U.S.C. § 1988;

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118.128.

Any other relief that the Court deems necessary or just to cure the

violations specified in this Complaint or that justice may require.

Dated: October 2, 2017

Respectfully submitted,

Johnathan Smith*

Mark H. Lynch (Bar # 12560)

Sirine Shebaya (Bar # 07191)

Mark W. Mosier*

MUSLIM ADVOCATES

Herbert L. Fenster*

P.O. Box 66408

José E. Arvelo*

Washington, D.C. 20035

John W. Sorrenti*

Tel: (202) 897-2622 Marianne F. Kies (Bar # 18606) Fax: (415) 765-1774

COVINGTON & BURLING LLP

johnathan@muslimadvocates.org One City Center sirine@muslimadvocates.org

850

10th Street, NW

Washington, D.C. 20001 Richard

B. Katskee (Bar # 27636) Tel: (202) 662-6000

Eric Rothschild* Fax: (202) 662-6302 Andrew Nellis*^

mlynch@cov.com

AMERICANS UNITED FOR SEPARATION mmosier@cov.com

OF CHURCH AND STATE

hfenster@cov.com

1310 L St. NW, Ste. 200

jarvelo@cov.com

Washington, D.C. 2005

jsorrenti@cov.com

Tel: (202) 466-3234

mkies@cov.com

Fax: (202) 466-3353

katskee@au.org Rebecca G. Van Tassell* rothschild@au.org

COVINGTON &

BURLING LLP nellis@au.org 1999 Avenue of the Stars

Los Angeles, California 90067

Tel: (424) 332 4800

Fax: (424) 332-4749

RVanTassell@cov.com

Dated: October 12, 2017

Respectfully submitted,

/s/ Mark H. Lynch

Johnathan Smith+ Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622

Mark H. Lynch (Bar # 12560) Mark W. Mosier* Herbert L. Fenster** José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606)
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Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild+ Andrew Nellis^+ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 rvantassell@cov.com

Attorneys for Plaintiffs
*+ Admitted pro hac vice. * Pro hac vice application pending. ** Pro hac vice application forthcoming. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

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 Case 8:17-cv-02921-TDC Document 43 Filed 10/14/17 Page 1 of 24
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS; et al.
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.
Defendants.

Civil Action No.: 17-CV-2921 Judge Chuang

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. Plaintiffs’ Claims Are Justiciable. ...................................................................................... 2
A. Plaintiffs Have Standing And Their Claims Are Ripe............................................ 2 B. The Government’s Additional Justiciability Challenges Also Lack Merit............. 3 II. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims. ................................... 6 A. The Proclamation Violates The INA. ..................................................................... 6
1. The Proclamation exceeds the scope of the President’s authority. ............. 6 2. The President has not made the finding required by § 1182(f)................... 7 3. The Proclamation impermissibly discriminates based on
nationality. .................................................................................................. 9 B. The Proclamation Violates The Constitution........................................................ 11
1. The Proclamation is subject to constitutional scrutiny. ............................ 11 2. The Proclamation violates the Establishment Clause. .............................. 14 3. The Proclamation violates the Equal Protection Clause. .......................... 18 III. Plaintiffs Have Satisfied The Other Requirements For Injunctive Relief. ....................... 20 CONCLUSION............................................................................................................................. 20
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INTRODUCTION The President’s recent Proclamation is his third attempt to deliver on his campaign promise to ban Muslims from the United States. The Government urges the Court to disregard the two failed Executive Orders and all of the President’s statements calling for a “total and complete shutdown on Muslims entering the United States.” First Am. Compl. ¶ 30. The Government also urges the Court to ignore the statements by the President and his advisors explaining how they could impose a “Muslim ban” “legally” by focusing on “territories.” Id. ¶¶ 36-41. In the Government’s view, all of the evidence that led courts to enjoin the prior travel bans can be ignored because the Proclamation was based on a multiagency “worldwide review” that analyzed countries’ vetting practices and scored them on a new “baseline” test. The baseline test is yet another post-hoc rationalization designed to produce results that would fulfill the President’s promise to ban Muslims from the United States. The Government also attempted to justify the last Executive Order (“EO-2”) based on national security concerns. Specifically, EO-2 relied on the fact that it applied to six countries identified as security risks under the Visa Waiver Program (“VWP”). Courts refused to accept this national-security justification and enjoined the travel ban because it was likely unconstitutional and violated the Immigration and Nationality Act (“INA”). The Proclamation’s baseline test should fare no better, as it uses the same VWP criteria to achieve similar results. To make matters worse, the President did not even accept what the baseline test produced. Instead, he arbitrarily accepted the results he wanted and rejected those he did not to arrive at a Proclamation that—just like the first two iterations of the travel ban—imposes onerous and unjustified travel restrictions on six Muslim-majority countries, now for an indefinite period of time. The Proclamation should be enjoined for the same reasons as the Executive Orders. It exceeds the President’s statutory authority, violates the Constitution, and causes irreparable harm.
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ARGUMENT I. Plaintiffs’ Claims Are Justiciable.
A. Plaintiffs Have Standing And Their Claims Are Ripe. 1. The Government does not challenge the Article III standing of the Doe Plaintiffs, who will be separated indefinitely from their family members and are made to feel like outsiders in the community. The Government instead contends that the Doe Plaintiffs’ claims will not be ripe until their family members are denied a visa and a waiver. Opp. 17. The Fourth Circuit correctly rejected this argument, explaining that the “ripeness doctrine is clearly not implicated” where, as here, “Plaintiffs … alleg[e] that [the Order] violates the Establishment Clause regardless of whether their relatives secure waivers.” IRAP v. Trump, 857 F.3d 554, 587 (4th Cir. 2017), vacated as moot by 2017 WL 4518553; see also Jackson v. Okaloosa Cty., 21 F.3d 1531, 1541 (11th Cir. 1994) (claim is ripe where discriminatory “hurdle itself is illegal whether or not it might have been surmounted”); Hawaii v. Trump, 859 F.3d 741, 767 (9th Cir. 2017). 2. The Government challenges Iranian Alliances Across Border’s (“IAAB”) standing, arguing that IAAB could not establish injury based on interference with its conferences unless IAAB provided the name of a “specific scholar or student who has concrete plans to attend an event.” Opp. 17. The Government cites no authority that supports this disclosure requirement. IAAB’s declaration states that almost half the speakers at their events come from countries outside the United States, including Iran. Kharrazi Decl. ¶ 18 (ECF No. 26, Ex. 1). That uncontroverted evidence is sufficient to demonstrate that IAAB’s conferences will be harmed.1
1 The Government also claims that IAAB’s events will not be harmed because Iranians can still apply for F, M, and J visas. But IAAB’s speakers and attendees do not rely solely on those visas. They also travel on B1 or B2 visas, which are subject to the ban. In any event, visas from Iran are subject to enhanced vetting, which may discourage application and impede attendance.
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In any event, IAAB suffers an injury-in-fact based on the time and resources it spends responding to concerns about the travel ban and the anti-Muslim sentiment it has generated. The Government disputes this, see Opp. 17-18, arguing the injury is nothing more than “a setback to the organization’s abstract social interests.” Opp. 18. But IAAB’s complaint is not about “abstract social interests”; it is about the “drain on [its] resources” directly attributable to the travel ban. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 (D.C. Cir. 1987). That injury is sufficient to establish standing. Id.; see also Hawaii v. Trump, 871 F.3d 646, 662 (9th Cir. 2017).
The Government also contends that an organization can establish third-party standing only if “both the third party and the litigant itself … have suffered an injury.” Opp. 18. Even if that were the test, the Iranian Student Foundation (“ISF”)—which was added as a party in the First Amended Complaint—qualifies because the travel ban will reduce its membership, its members will be separated indefinitely from their families, and the Proclamation sends a message that its members are outsiders. Pashai Decl. ¶¶ 9-13 (ECF No. 38, Ex. A). In any event, ISF can establish associational standing by showing: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). That standard is easily satisfied here. Pashai Decl. ¶¶ 8-14.
B. The Government’s Additional Justiciability Challenges Also Lack Merit. The Government raises several reviewability arguments that have been consistently rejected in previous challenges to the travel ban. See Hawaii, 859 F.3d at 768-69; IRAP, 857 F.3d at 587-88. They should fare no better here. 1. The Government contends that Plaintiffs’ Establishment Clause claims are not reviewable because Plaintiffs do not allege that their own rights are violated. Opp. 14-15. That is
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incorrect. The Proclamation directly injures Plaintiffs by making them feel “personally attacked, targeted, and disparaged” and “show[ing] hostility to Iranians generally and to Muslims in particular.” John Doe #6 Decl. ¶ 9 (ECF No. 26, Ex. 6); see also, e.g., Jane Doe #2 Decl. ¶ 9 (ECF No. 26, Ex. 3). These “[f]eelings of marginalization and exclusion are cognizable forms of injury” under the Establishment Clause. Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012).2
2. The Government asserts that the doctrine of consular nonreviewability bars Plaintiffs’ statutory claims. Opp. 10. But Plaintiffs seek review of the Proclamation itself, not individual consular visa decisions. Courts regularly adjudicate statutory challenges to immigration policies, even when these implicate national-security and foreign-policy concerns. See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187-88 (1993) (reaching the merits of a claim that President exceeded his authority under § 1182(f)); U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544-47 (1950) (involving statutory claims against a Presidential proclamation).
The Government’s reliance on Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999), is misplaced. Saavedra Bruno involved a challenge by a noncitizen to the denial of a visa. The D.C. Circuit held that the noncitizen’s claims were not subject to judicial review under the doctrine of consular nonreviewability, while specifically noting that the doctrine is “inapplicable . . . [to] ‘claims by United States citizens’” that involve both statutory and constitutional
2 This case “bears little resemblance to” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 487 (1982). IRAP, 857 F.3d at 585. Far from “roam[ing] the country in search of governmental wrongdoing,” Plaintiffs have been “forced to assume special burdens” as a result of the Proclamation. Valley Forge, 454 U.S. at 487, 486 n.22. For example, Jane Doe #5, who is 79-years old, wheelchair bound, and has health issues, has a pending immigrant visa petition for her son whom she may never be able to see again. Jane Doe #5 Decl. ¶ 6-7.
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causes of action such as the claims Plaintiffs bring in this case. Saavedra, 197 F.3d at 1163 (quoting Abourezk v. Reagan, 785 F.2d 1043, 1051 n.6 (1981)).
3. The Government further contends that neither the INA nor the Administrative Procedure Act (“APA”) provide Plaintiffs with a right of action. Opp. 11-13. Their argument fails.
Although the President is not an “agency” under the APA, a “long history of judicial review of illegal executive action” shows that courts may enjoin “violations of federal law by federal officials.” Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378, 1385 (2015); see also INS v. St. Cyr, 533 U.S. 289, 298 (2001) (noting “strong presumption in favor of judicial review of administrative action”); Sale, 509 U.S. at 187-88 (reaching merits of claim that Executive Order issued under § 1182(f) violated another INA provision). Courts have also allowed plaintiffs to challenge Executive actions that violated a statute placing limitations on those actions. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1327-29 (D.C. Cir. 1996). Here, § 1182(f) and § 1152(a)(1)(A) place limits on Executive action, see infra at 6-11, and thus executive actions exceeding those limits are reviewable.
The Government also contends incorrectly that Plaintiffs have no statutory rights to enforce because they are not aggrieved by agency action. Opp. 13. Plaintiffs are injured by the Proclamation’s anti-Muslim message and the prolonged familial separation it will cause them. As visa sponsors, Plaintiffs are within the zone of interest the INA protects. See, e.g., Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 471-72 (D.C. Cir. 1995) (LAVAS), vacated on other grounds by 519 U.S. 1 (1996) (U.S. residents applying for visas for family members “fall well within the zone of interest Congress intended to protect”); Hawaii, 859 F.3d at 766 (plaintiff fell “within the zone of interests of the INA” when mother-in-law could not travel to the U.S. under EO-2).
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II. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims. A. The Proclamation Violates The INA. Contrary to the Government’s contention, the INA does not provide limitless authority
for the President to ignore the federal immigration statutory framework and replace it with his own. That would be inconsistent with separation of powers and with the text of the INA.
1. The Proclamation exceeds the scope of the President’s authority. Sections 1182(f) and 1185(a) do not give the President unbridled authority to restrict entry, as the Government contends, nor could they. The Constitution vests the legislative power, including the power to make “[p]olicies pertaining to the entry of aliens[,] … exclusively to Congress.” Arizona v. United States, 567 U.S. 387, 409 (2012); see also Galvan v. Press, 347 U.S. 522, 531 (1954) (“[T]hat the formulation of [entry policies] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”). By entrusting this power to Congress—a “deliberate and deliberative” body, INS v. Chadha, 462 U.S. 919, 959 (1983)—the Framers avoided the sort of unreviewable “prerogative” over immigration “exercised by George III,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring). The Supreme Court repeatedly has refused to read federal immigration law to make sweeping, unbounded delegations of Congress’s authority to the Executive. In Kent v. Dulles, 357 U.S. 116, 128 (1958), the Court considered the meaning of a passport statute and refused to “impute to Congress … a purpose to give [an executive official] unbridled discretion.” See also United States v. Witkovich, 353 U.S. 194, 199-200 (1957) (holding that the Attorney General’s apparently “unbounded authority to require whatever information he deems desirable of aliens” authorized only those demands consistent with the “purpose of the legislative scheme”).
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The Government overlooks these decisions and instead suggests that U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), supports its position. See Opp. 26. Knauff does not support the broad delegation authority the Government asserts. Rather, the Court acknowledged the more limited proposition that “Congress may in broad terms authorize the executive to exercise the [exclusion] power … for the best interests of the country during a time of national emergency.” Knauff, 338 U.S. at 543 (emphasis added). The Government points to no national emergency justifying the broad power to rewrite immigration law the President has seized.
Nor does The Supreme Court’s decision in Sale justify the Proclamation’s indefinite ban on entry of nationals from certain countries. The Court explained in Sale that § 1182(f) “grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.” 509 U.S. at 187. The case involved the use of military forces beyond the territorial United States to prevent entry of people who did not satisfy eligibility criteria that Congress had established by statute. Sale does not authorize the President to rewrite those criteria and impose a ban against all nationals of certain countries.
2. The President has not made the finding required by § 1182(f). The Government claims that § 1182(f) “permit[s] the President to make his determinations on a categorical basis.” Opp. 24 n.12. But § 1182(f) makes clear that the President can suspend entry only if he “finds that the entry of any aliens or of any class of aliens … would be detrimental to the interests of the United States.” Id. (emphasis added). It is not enough for the President to find that entry of some individuals in a group would be detrimental, or that entry of a group might be detrimental. The Proclamation, which indefinitely bans entry of more than 157 million individuals, is not supported by any finding of classwide detrimental effect, and is far in excess of the President’s statutory authorization to suspend entry of a “class of aliens” for a particular “period” of
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time. Id. The Proclamation “makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States,” Hawaii v. Trump, 859 F.3d 741, 772 (9th Cir. 2017), and a DHS report refutes that claim. See First Amended Complaint ¶ 51 (ECF No. 37). Nor does the Proclamation “tie these nationals in any way to terrorist organizations within the … designated countries” or “provide any link between an individual’s nationality and their propensity to commit terrorism.” Id.
The Government’s assertion that the targeted countries do not adequately share information with the United States, see Opp. 23-25, does not justify the sweeping ban imposed. A visa applicant already “bears the burden of showing that the applicant is eligible to receive a visa or other document for entry and is not inadmissible.” See Hawaii, 859 F.3d at 773 (citing 8 U.S.C. § 1361). If an applicant cannot produce sufficient records, that person is denied a visa under the statutory scheme enacted by Congress. Congress deemed those vetting procedures sufficient for both travelers and immigrants from the designated countries. See IRAP Br. 15-17; infra at 12-13. The Proclamation usurps that legislative authority and should be enjoined because it purports to impose contrary “policies as rules of conduct to be followed” by federal agencies and, “like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed.” See Youngstown, 343 U.S. at 588.
As a fallback to its pretextual justifications for the Proclamation, the Government claims that the President does not need to provide any rationale for his actions. See Opp. 20-21. That claim is contrary to the plain text of § 1182(f), which requires the President to “find[] that the entry … would be detrimental.” 8 U.S.C. § 1182(f) (emphasis added). The government’s reliance on Sale for this point is misplaced. See Opp. 21. Sale dealt with thousands of Haitian nationals—most of whom were not eligible, even as refugees, for entry to the United States—
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embarking on a dangerous voyage to the United States only to be detained in facilities when they arrived. 509 U.S. at 163. The President, in consultation with the Haitian government, used military forces to prevent their entry to the United States, and the Supreme Court chose not to question that methodology for preventing entry of people Congress had not authorized to enter the United States. The President there did not attempt—and the Supreme Court did not approve—a rewrite of the immigration statute regarding who is not admissible.
As a last resort, the Government suggests that the Court can ignore the limits of § 1182(f) because a different provision, § 1185(a), “does not require any predicate findings whatsoever.” Opp. 20. But that interpretation would render § 1182(f) meaningless, in violation of wellestablished rules of statutory construction. See Dada v. Mukasey, 554 U.S. 1, 16 (2008). Further, any such reading of § 1185(a) would raise serious separation of powers concerns. See supra at 6-7. Accordingly, § 1185(a) should not be construed as an independent grant of unfettered authority. Instead, it simply recognizes that non-citizens cannot violate limitations imposed under other constitutional or statutory grants of authority. See Hawaii, 859 F.3d at 770 n.10.
3. The Proclamation impermissibly discriminates based on nationality. The Government does not dispute that the Proclamation discriminates on the basis of nationality. Such discrimination violates § 1152(a)(1)(A), which prohibits discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Congress enacted this provision contemporaneously with the Civil Rights Act of 1964 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). “Congress could not have used more explicit language in unambiguously direct[ing] that no nationality-based discrimination shall occur.” Hawaii, 859 F.3d at 777. The Government’s attempts to reconcile the Proclamation with § 1152(a)(1)(A) are unconvincing and should be rejected.
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First, the Government claims that the Proclamation bars entry, not the issuance of visas, so § 1152(a)(1)(A) does not apply. See Opp. 31-32. But the Proclamation’s direct effect is to bar the issuance of visas to groups of people based on their nationality. See Proclamation § 3(c)(iii) (specifying that nationals of the targeted countries must obtain a waiver from agency officials in order to secure the “issuance of a visa.”). In fact, the Proclamation specifically allows individuals with preexisting valid visas to enter the United States, making even clearer that it functions as a ban on visa issuance, and not on entry of individuals who already have visas.
Second, the Government claims that it can “harmonize” the statutory provisions by reading §§ 1182(f) and 1185(a)(1) to give the President limitless authority to narrow the individuals eligible for visas so that consular officials need not discriminate on the basis of nationality when they deny visas for all nationals of a certain country. Opp. 32. This proposed reading renders § 1152(a)(1)(A) a “nullity.” Dada, 554 U.S. at 16. It would allow the Executive to discriminate in whatever way he wished, including on the basis of race or gender. Congress provided no authority to the Executive to upend the entire statutory scheme in this way. See Hawaii, 859 F.3d at 779 (EO-2 “exceed[ed] the restriction of § 1152(a)(1)(A) and the overall statutory scheme” by “suspending the issuance of immigrant visas and denying entry based on nationality”).3
Third, the Government claims that § 1185(a) supersedes § 1152(a) because § 1185(a) was amended more recently. Opp. 33-34. But the Government cites an amendment that changed only the introductory language of § 1185(a); it did not change the substantive authority that the President invoked here. See Pub. L. No. 95-426, § 707(a), 92 Stat. 992-93 (1978). Moreover,
3 The Government further hypothesizes that enforcement of § 1152(a)(1)(A) according to its plain language would hamstring the country in time of war. But Congress has provided other mechanisms to prevent saboteurs and spies from entering the country. See, e.g., 8 U.S.C. § 1182(a)(3)(A). In any event, unlawful “discrimination” as a legal concept typically does not encompass restrictions narrowly tailored to a compelling interest. See LAVAS, 45 F.3d at 473.
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§ 1152(a) provides a specific prohibition on discrimination that takes precedence over § 1185(a)’s recognition of general rulemaking authority. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (“general/specific canon” applies when “a general permission … is contradicted by a specific prohibition”).
B. The Proclamation Violates The Constitution. 1. The Proclamation is subject to constitutional scrutiny.
The Government claims that the Establishment Clause inquiry ends before it begins because of Kleindienst v. Mandel, 408 U.S. 753 (1972). Opp. 35. But when plaintiffs have made a showing of bad faith, judicial review is required. Kerry v. Din, 135 S. Ct. 2128, 2141 (2015).4 Here, the showing of bad faith is overwhelming: the President’s campaign promise to ban Muslims from the United States, along with numerous other statements of hostility toward Muslims; the President’s subsequent explanation that he would mask the ban on Muslims by targeting territories; the Executive Orders’ targeting of territories predominantly home to Muslims; the rush to issue EO-1, without input from national-security officials; DHS’s conclusion that a nationality ban would not improve national security; and issuance of EO-2 and the Proclamation, with almost all the same attributes and defects. First Amended Complaint (Dkt. 37) ¶¶ 28-64. The Proclamation, like the Executive Orders, “cannot be divorced from the cohesive narrative linking it to the animus that inspired it.” IRAP, 857 F. 3d at 601.
The Government contends that this entire context must be ignored because a “worldwide review” based on a newly created “baseline” and “diplomatic engagement” pursuant to EO-2 “sets forth a bona fide basis” for the Proclamation. Opp. 2, 36. But the proffered reasons must
4 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), does not change the analysis. There, the Court concluded that the standard of review used in Fiallo v. Bell did not apply. Id. at 1693–94. The Court said nothing about Din’s bad-faith standard, much less abandon it. Id. at 1693.
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be assessed against the evidence of bad faith already in the record from which the Proclamation arises. That evidence is reinforced by the structure and text of the Proclamation itself.
a. The “baseline” created as a basis for the Proclamation is the same post-hoc rationale that was proffered, and rejected, by the courts on review of EO-2. When the President issued the Executive Orders, he relied on the fact that the targeted countries had been “previously identified” under the Visa Waiver Program (“VWP”), 8 U.S.C. § 1187, as “warrant[ing] additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats.” EO-2 § 1(d). Courts rejected that rationale and enjoined the Executive Orders, ruling that their primary purpose was anti-Muslim animus, not the purported national-security rationale based on the VWP. See, e.g., IRAP, 857 F.3d at 592, 596; Aziz v. Trump, 234 F. Supp. 3d 724, 736–37 (E.D. Va. 2017). The new “baseline” adopted by the federal agencies for determining which countries are “inadequate” or are “at risk” of being so for purposes of the Proclamation relies on the very same VWP criteria.
b. The VWP was, and is, an inappropriate fit for a § 1182(f) determination. The VWP applies to a small group of non-immigrant visas—business travelers and tourists visiting the U.S. for less than 90 days—and only to nationals of roughly 38 countries that permit U.S. nationals to travel to their countries without a visa. Because a noncitizen can enter the U.S. under the VWP without an in-person interview or a detailed written submission, customs officials must quickly assess the individual based on her passport and information in national security and law enforcement databases. See 8 U.S.C. § 1187(a)(9)-(11). That is why the VWP requirements place great emphasis on a foreign country’s passport design and willingness to share information.
These concerns are very different from the purpose underlying the President’s authority to suspend entry for a period of time of a particular “class” of noncitizens that “would be detri-
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mental to the interests of the United States.” 8 U.S.C. § 1182(f). If a country’s informationsharing processes are insufficient, the response Congress chose was to exclude the country from the VWP. Nationals of such countries may still apply for entry, but they must use the traditional visa process to do so. The VWP criteria thus clearly fail to justify a blanket indefinite ban on entry. The Proclamation converts those criteria from their intended purpose to an unconstitutional, indefinite baseline for banning entry of Muslims.5
c. The Proclamation’s treatment of the agencies’ baseline test results further demonstrates that the worldwide review operates to retroactively produce the same results as the President’s EO-2 travel restrictions. Rather than implementing the results of the baseline test, the Proclamation made alterations to ensure closer replication of EO-2.
For example, although Iraq failed the baseline test, the acting Secretary of Homeland Security recommended that its nationals not be banned from entry by the Proclamation. Proclamation § 1(g). She based her decision on “diplomatic” considerations, not a security determination, id., and did not explain why DHS was making diplomatic judgments, leaving only the obvious explanation that her decision was influenced by Iraq’s exclusion from the earlier EO2. The President also departed from the baseline-test results to make the Proclamation more consistent with EO-2 when, with the narrow exception of certain government officials, he failed to impose restrictions on Venezuela—a country with few Muslims and that was not included in EO2—even though it failed the baseline assessment. Id. § 2(f)(i).6 Yet he banned entry for all im-
5 This court need not, as the government argues, attribute bad faith to the government officials involved in the agency review (Opp. 38) to conclude that the draconian consequence of indefinite exclusion ordered by the President is a continuation of the bad faith demonstrated by his promise to ban Muslims, and his repeated attempts to do so. 6 The President chose not to impose the travel restrictions on Venezuela because he asserted (but did not identify) “alternative sources for obtaining information” about Venezuelans. Id. The (continued…)
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migrants from Somalia—a predominately Muslim country—even though it passed the baseline test. The reason is clear: Somalia had been in EO-2, and the President refused to take it out.7
d. The “baseline test” irrationally omits any consideration of whether current vetting practices have been sufficient to detect which applicants pose national security risks. Although the President previously ordered DHS to produce a report on these issues, the Proclamation notably omits any such analysis. The statistics on past vetting failures suggest that considering this information would have skewed the results away from the President’s promised Muslim ban. See, e.g., J.R. 695-702. Nationals from the countries targeted in the ban are responsible for virtually no terrorist attacks in the United States. Id.
In sum, the evidence surrounding the baseline and the Proclamation does not provide a different or better rationale for the ban against nationals from the targeted Muslim-majority countries than did the VWP criteria rationale in the previous iterations of the President’s travel ban. It does not eliminate the bad faith that has infected the entire effort to ban Muslims from the United States, and it does not shield the Proclamation from constitutional scrutiny.
2. The Proclamation violates the Establishment Clause. The Government does not dispute that a policy that prefers one religious denomination over another violates the Establishment Clause. Larson v. Valente, 456 U.S. 228, 244 (1982). Indeed, it has previously acknowledged that an explicit ban on Muslims, as called for by then candidate Trump, would likely violate the Constitution.8 It contends, however, that “[t]here is no
President gave no explanation for why Venezuela received such favorable treatment while other countries did not. 7 The Proclamation states that DHS’s recommendations would be disregarded because of “several other considerations.” Proclamation § 2(h)(i). But the “other considerations” were factors already in the baseline test, which Somalia passed. Id. 8 IRAP v. Trump, CSPAN 30:29 (May 8, 2017), http://cs.pn/2j4kM4h.
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basis for invalidating the Proclamation [because] [t]he Proclamation’s text does not refer to or draw any distinction based on religion.” Opp. 39. But serial efforts to ban Muslims by targeting Muslim-majority countries and “calling it territories” is as constitutionally defective as banning Muslims explicitly. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (Establishment Clause “extends beyond facial discrimination” to “‘forbid[] subtle departures from neutrality’ and ‘covert suppression of particular religious beliefs.’”). A policy that so disproportionately—almost exclusively—disadvantages Muslims clearly violates Larson’s bar against denominational preference, regardless of the policymaker’s intent.9 By its categorical terms, and its indefinite duration, the Proclamation goes further than either of the EOs in effecting “a total and complete shutdown of Muslims entering the United States.” First Am. Compl. ¶ 30. And that means that certain American Muslims may never live with their spouses in the United States (Declarations of Jane Does 2 and 3 (ECF No. 26, Ex. 3-4)), or have the company of their adult children during the later years of their lives (Declaration of Jane Doe 5), regardless of whether the government has any bona fide basis for barring their loved ones’ entry.
There is also ample, uncontroverted evidence of improper religious purpose: animus toward one denomination that is unprecedented in modern political discourse. Those expressions of animus, along with the policy itself, inflict stigma and fear on members of the affected communities. See, e.g., Kharrazi Decl. ¶ 12 (describing youth campers’ “feelings of fear, self-hate, and lowered self-esteem arising specifically from the statements made about Muslims and Iranians during the election, and the imposition of travel bans on Iranians and nationals of other
9 The Government makes only passing reference to non-Muslim countries North Korea (from which there is almost no travel to the United States), and Venezuela (which is largely excluded from the ban). It did not argue that their inclusion demonstrates religious neutrality.
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predominantly Muslim countries.”). “The danger of stigma and stirred animosities is no less acute for religious line-drawing than for racial.” Bd. of Educ. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring).
The Government purports to have made a clean break from both candidate Trump’s promise to ban Muslims and the prior Executive Orders that did ban Muslims, because the Proclamation, unlike its predecessors, is supposedly based on the worldwide review and engagement with foreign countries (completed in less than two months). Opp. 39. That is not how the Establishment Clause works. The Government’s purpose is not viewed through the lens of “an absentminded objective observer,” “[un]familiar with the history of the government’s actions” and aware only of “the latest news about the last in a series of governmental actions.” See McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005).10
The objective observer of the Proclamation’s history will know that President Trump has relentlessly pursued the Muslim ban he promised, and also that the “baseline test” is virtually identical to the VWP criteria that courts evaluating the Executive Orders deemed inadequate to show a genuine national-security purpose. Prior rulings that the EO-2 violated the Establishment Clause, even if no longer in effect, are historical facts that the objective observer would know. See McCreary., 545 U.S. at 857, 871 (affirming that the Counties’ purported new purpose “crumble[s]…upon an examination of the history of…litigation” regarding related government actions); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000) (striking down the school district’s policy as “the latest step in developing litigation brought as a challenge to institutional
10 While the government may take curative actions to neutralize an impermissible religious purpose, these actions must “be sufficient not only to persuasively present a primary nonreligious effect, but also to disassociate the [government action] from its previous religious effect.” Felix v. City of Bloomfield, 841 F.3d 848, 863 (10th Cir. 2016). The President has taken no actions to disassociate himself from his prior statements.
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practices that unquestionably violated the Establishment Clause”); Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 279 (5th Cir. 1996) (finding Texas’ School Prayer Statute unconstitutional in light of its reactionary relationship to litigation affirming the suspension of school principal who allowed students to lead prayer over the school’s intercom). Defendants, acting with knowledge that the Executive Orders were unconstitutional, issued a substantially similar Proclamation. Courts should not “turn a blind eye” to their own prior evaluations of EO-1 and EO-2, nor to the impact those decisions have on objective observers of the Proclamation. Santa Fe, 530 U.S. at 315.
The Government suggests that the President, after taking office, has effected a “genuine change[] in constitutionally significant conditions” through a handful of statements, unrelated to his immigration and travel bans, that are not hostile to Muslims. Opp. 43. None of the statements disavow the Muslim ban promise, and no reasonable observer would be “able to awake without the vivid memory of” the President’s prior statements. IRAP, 857 F. 3d at 599. And certainly no reasonable observer could ignore that the President persistently attempted to ban Muslims, trying different formulations and rationales; that the President has advocated tougher bans that are not “politically correct”;11 and that he continues to laud an even rougher, explicitly anti-Muslim approach to fighting terror: a mythical account of General John Pershing executing Muslim insurgents in the Philippines with bullets dipped in pigs’ blood.12 Just as the counties in McCreary never “repudiated” the resolutions authorizing prior Ten Commandments displays, Opp. 43, neither has the President repudiated his intent to ban Muslims.
11 Donald J. Trump (@real Donald Trump), Twitter (June 5, 2017, 6:20 PM EDT); Donald J. Trump (@real Donald Trump), Twitter (Sept. 15, 2017, 6:54 AM EDT) 12 Alex Horton, Trump Said to Study General Pershing. Here’s What the President Got Wrong, Wash. Post (Aug. 18, 2017), https://goo.gl/tY5ZbA.
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3. The Proclamation violates the Equal Protection Clause. The Government argues that the Equal Protection claim fails for the same reasons as the Establishment Clause claim. Opp. 43 n.20. But the Government’s argument fails because both direct and circumstantial evidence of discriminatory intent may be considered under an equal protection analysis. The Proclamation violates the Equal Protection Clause if it has a discriminatory impact and there is “proof that a discriminatory purpose has been a motivating factor in the [challenged] decision.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). The discriminatory impact is clear given that the ban overwhelmingly bars travel by Muslims. To determine whether a purpose of discriminating against Muslims was a “motivating factor” for the Proclamation, the Court must conduct “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id; see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, n.24 (1979) (describing the inquiry as “practical”). This evidence can be drawn from “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes,” the “specific sequence of events leading up [to] the challenged decision,” and procedural and substantive departures from established procedures. Arlington Heights, 429 U.S. at 266. The historical background and the specific sequence in which the Proclamation came about show that it was motivated by anti-Muslim animus. See Am. Compl. ¶¶ 28-38, 41, 43-44, 50, 56, 61. The President’s statements, which courts found to be persuasive evidence that EO-1 and EO-2 were motivated by religious animus, are equally probative of the discriminatory intent behind the Proclamation. See, e.g., Jean v. Nelson, 711 F.2d 1455, 1490-92 (11th Cir. 1983) (finding evidence of prior discriminatory policies and internal discussions regarding those policies, to be probative of whether the challenged policy was motivated by discriminatory intent);
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see also N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 224-225 (4th Cir. 2016) (“that a legislature impermissibly relied on race” in enacting a prior election law “certainly provides relevant evidence as to whether race motivated other election legislation passed by the same legislature”). The sequence leading up to the Proclamation—the third attempt to accomplish a goal that courts have twice enjoined—is also evidence of discriminatory intent. See, e.g., NAACP, 831 F.3d at 227 (finding discriminatory purpose based, in part, on fact that several prior proposed election law changes were found to be discriminatory).13
The Proclamation’s effect—to bar entry by nationals of certain Muslim-majority countries—is also “probative of why the action was taken in the first place since people usually intend the natural consequences of their action.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997). That the ban does not include all Muslim-majority countries does not preclude a finding of discriminatory intent. See Feeney, 442 U.S. at 277 (“Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude.”). Nor does it matter that the ban will affect non-Muslims too: “[a] willingness to inflict collateral damage by harming … individuals from a favored group in order to successfully harm members of a disfavored class does not cleanse the taint of discrimination.” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013).
Given the overwhelming “direct and circumstantial” evidence of discriminatory intent, the Proclamation violates the Equal Protection Clause.
13 That some of the President’s statements were made before he took office is irrelevant. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (looking to referendum campaign statements in the context of an Equal Protection Clause inquiry); Arce v. Douglas, 793 F.3d 968, 979-80 (9th Cir. 2015) (looking to campaign statements of Superintendent of Public Education and Attorney General in assessing discriminatory intent).
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III. Plaintiffs Have Satisfied The Other Requirements For Injunctive Relief. 1. The Government ignores entirely the irreparable harm resulting from the Establishment

Clause violation. The law is clear—and the Government does not dispute—that “[v]iolations of

First Amendment rights constitute per se irreparable injury.” Johnson v. Bergland, 586 F.2d

993, 995 (4th Cir. 1978). The Government contends that Plaintiffs will not suffer irreparable

harm because they have shown only that the Proclamation might delay the entry of family mem-

bers. Opp. 44. But this delay is sufficient to establish irreparable harm: The Proclamation bans

entry to Plaintiffs’ family members indefinitely. Plaintiffs do not know when, if ever, they will

be reunited. See IRAP, 857 F.3d at 601-02; see also Hawaii, 859 F.3d at 782-83.

2. The Government also fails to show that the balance of equities and public interest

weigh against an injunction. The Government invokes the public interest in the President exer-

cising his national-security and foreign-policy authorities (Opp. 44), but the public has no

interest in the President exercising his powers in violation of Constitution. See Giovani Caran-

dola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (government not “harmed by issuance of a

preliminary injunction which prevents [it] from enforcing restrictions likely to be found uncon-

stitutional”); see also id. (“upholding constitutional rights surely serves the public interest.”).

CONCLUSION Plaintiffs’ motion for a preliminary injunction should be granted.

Dated: October 14, 2017

Respectfully submitted,

Johnathan Smith Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774

/s/ Mark H. Lynch Mark H. Lynch (Bar # 12560) Mark W. Mosier Herbert L. Fenster** José E. Arvelo John W. Sorrenti Marianne F. Kies (Bar # 18606) Karun Tilak** COVINGTON & BURLING LLP
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Case 8:17-cv-02921-TDC Document 43 Filed 10/14/17 Page 23 of 24

johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild Andrew L. Nellis^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com hfenster@cov.com jarvelo@cov.com jsorrenti@cov.com ktilak@cov.com mkies@cov.com
Rebecca G. Van Tassell COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

Kathryn E. Cahoy** COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, California 94065 Tel: (650) 632-4700 Fax: (650) 632-4800 kcahoy@cov.com

** Pro hac vice application forthcoming. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

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Case 8:17-cv-02921-TDC Document 43 Filed 10/14/17 Page 24 of 24 CERTIFICATE OF SERVICE
I hereby certify that, on October 14, 2017, a copy of the foregoing document was served on counsel for Defendants, via CM/ECF.
/s/ Mark H. Lynch Mark H. Lynch (Bar # 12560)
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 Case 8:17-cv-02921-TDC Document 46 Filed 10/17/17 Page 1 of 91

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,

Plaintiffs,

v.

Civil Action No. TDC-17-0361

DONALD J. TRUMP, in his official capacity as President of the United States, et al.,

Defendants.

IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Civil Action No. TDC-17-2921

EBLAL ZAKZOK, et al., Plaintiffs, v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Civil Action No. TDC-17-2969

MEMORANDUM OPINION For the third time this year, President Donald J. Trump has issued an order banning the entry into the United States, with some exceptions, of nationals of multiple predominantly

Case 8:17-cv-02921-TDC Document 46 Filed 10/17/17 Page 2 of 91
Muslim nations. At issue is whether this latest travel ban should be enjoined by this Court because it is the latest incarnation of the “Muslim ban” originally promised by President Trump as a candidate for the presidency, and thus violates the Establishment Clause of the First Amendment to the United States Constitution, or because the issuance of the travel ban exceeds the President’s delegated authority under the Immigration and Nationality Act to suspend the entry into the United States of classes of immigrants and nonimmigrants. For the reasons set forth below, the Court concludes that a preliminary injunction is warranted.
INTRODUCTION On January 27, 2017, President Trump issued Executive Order 13,769, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-1”), 82 Fed. Reg. 8977 (Jan. 27, 2017), which barred the entry into the United States of nationals of seven predominantly Muslim countries for a 90-day period. On February 7, 2017, Plaintiffs International Refugee Assistance Project (“IRAP”), HIAS, Inc., and seven individuals (collectively, “the IRAP Plaintiffs”), filed a Complaint in this Court alleging that EO-1 violated the Establishment Clause of the First Amendment, U.S. Const. amend. I; the equal protection component of the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V; the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1537 (2012); the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 (2012); the Refugee Act, 8 U.S.C. §§ 1521-1524 (2012); and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2012). On March 6, 2017, after EO-1 was enjoined by other federal courts, President Trump issued Executive Order 13,780 (“EO-2”), which bears the same title as EO-1 and was scheduled to go into effect and supplant EO-1 on March 16, 2017. 82 Fed. Reg. 13209 (Mar. 9, 2017). Section 2(c) of EO-2 suspended for 90 days the entry into the United States of nationals of Iran,
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Libya, Somalia, Sudan, Syria, and Yemen. On March 10, 2017, the IRAP Plaintiffs amended their Complaint to seek the invalidation of EO-2, alleging the same causes of action pleaded in their original Complaint. The IRAP Plaintiffs also filed a motion for a preliminary injunction against the enforcement of EO-2, on Establishment Clause and INA grounds. On March 15, 2017, this Court enjoined enforcement of Section 2(c) after finding that the IRAP Plaintiffs were likely to succeed on their claim that EO-2 violated the Establishment Clause. Int’l Refugee Assistance Project v. Trump (“IRAP”), 241 F. Supp. 3d 539 (D. Md. 2017). This Court’s Order was then appealed to and in substantial part affirmed by the United States Court of Appeals for the Fourth Circuit, sitting en banc. Int’l Refugee Assistance Project v. Trump (“IRAP”), 857 F.3d 554 (4th Cir. 2017). In light of the expiration of EO-2, the Fourth Circuit’s judgment has since been vacated as moot by the United States Supreme Court. Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553 (Oct. 10, 2017).
On September 24, 2017, President Trump issued Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (“Proclamation”), which will bar indefinitely the entry into the United States of some or all nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. 82 Fed. Reg. 45161 (Sept. 27, 2017).
On October 3, 2017, Iranian Alliances Across Borders (“IAAB”) and Doe Plaintiffs 1-6 (collectively, the “IAAB Plaintiffs”) filed a Complaint in this Court asserting that the Proclamation violates the INA, the Establishment Clause, the Free Speech Clause of the First Amendment, and the equal protection and procedural due process components of the Due Process Clause of the Fifth Amendment. On October 5, 2017, the IRAP Plaintiffs, now consisting of IRAP, HIAS, Middle East Studies Association (“MESA”), Arab-American
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Association of New York (“AAANY”), Yemeni-American Merchants Association (“YAMA”), John Does No. 1 and 3-5, Jane Doe No. 2, Muhammed Meteab, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour Shirani, and Afsaneh Khazaeli, filed a Second Amended Complaint in which they repeated their prior causes of action and extended them to the Proclamation, added a second claim under the INA alleging that the Proclamation exceeded the President’s statutory authority, and added a claim that the Proclamation violated the procedural due process protections of the Fifth Amendment. On October 6, 2017, in a separate case, Eblal Zakzok, Sumaya Hamadmad, Fahed Muqbil, John Doe No. 1, and Jane Does No. 2-3 (collectively, “the Zakzok Plaintiffs”) filed a Complaint stating causes of action under the Establishment Clause, the INA, and the APA. On October 12, 2017, the IAAB Plaintiffs amended their Complaint to add the Iranian Students’ Foundation (“ISF”), an affiliate of IAAB at the University of Maryland College Park, as a Plaintiff. The IAAB Plaintiffs subsequently filed a Motion for Leave, which the Court has since granted, seeking to file declarations from representatives of ISF in support of the Motion for a Preliminary Injunction.
Each of these three separate cases name some or all of the following as Defendants: President Trump; the U.S. Department of Homeland Security; the U.S. Department of State; Elaine C. Duke, Acting Secretary of Homeland Security; Rex W. Tillerson, Secretary of State; Dan Coats, Director of National Intelligence; Jefferson Beauregard Sessions, III, Attorney General; Kevin K. McAleenan, Acting Commissioner of U.S. Customs and Border Protection; James McCament, Acting Director of U.S. Citizenship and Immigration Services. All of the Plaintiffs seek injunctive and declaratory relief.
On October 6, 2017, the IRAP Plaintiffs filed a Motion for a Preliminary Injunction in which they ask this Court to enjoin the Proclamation in its entirety before it takes effect. The
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IAAB and Zakzok Plaintiffs have also each filed a Motion for a Preliminary Injunction and have joined in the arguments of the IRAP Plaintiffs. Defendants filed a consolidated brief in opposition to the Motions on October 12, 2017, and Plaintiffs filed separate reply briefs on October 14, 2017. The Court held a hearing on the Motion on October 16, 2017. With the matter fully briefed and argued, the Court now issues its findings of fact and conclusions of law.
FINDINGS OF FACT I. Public Statements
On December 7, 2015, then-presidential candidate Donald J. Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website in which he “call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” Joint Record (“J.R.”) 85. Trump promoted the Statement on Twitter that same day, stating that he had “[j]ust put out a very important policy statement on the extraordinary influx of hatred & danger coming into our country. We must be vigilant!” J.R. 209. In a March 9, 2016 interview with CNN, Trump stated his belief that “Islam hates us,” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” J.R. 255-57. Then, in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, asserting that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” J.R. 261.
In a May 11, 2016 appearance on On the Record, Trump stated that he would ask former New York City Mayor Rudolph W. Giuliani to lead a group to “look at the Muslim ban or temporary ban,” that there “has to be something,” and that he had “[g]reat Muslim friends who are telling me you are so right. … [T]here is something going on that we have to get to the
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bottom of.” J.R. 513. In a June 13, 2016 speech, Trump stated that “[w]e have to control the amount of future immigration into this country to prevent large pockets of radicalization from forming inside America,” noting that “[e]ach year, the United States permanently admits more than 100,000 immigrants from the Middle East, and many more from Muslim countries outside the Middle East.” J.R. 528.
In a July 24, 2016 interview on Meet the Press soon after he accepted the Republican nomination, Trump was asked about the “Muslim ban.” J.R. 219. Trump responded that immigration should be “immediately suspended” “from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.” J.R. 219. When questioned whether this formulation was a “rollback” of his December 2015 call for a “Muslim ban,” Trump disagreed, stating “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories.” J.R. 220. He explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” Id. During the October 9, 2016 Presidential Debate, when asked by the moderator about his proposed “Muslim ban,” he explained that the “Muslim ban” had “morphed into an extreme vetting from certain areas of the world.” J.R. 591.
On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R. 245. In a written statement about the events, he lamented the attack on people “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” J.R. 245.
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II. Executive Order 13,769 On January 27, 2017, a week after his inauguration, President Trump issued EO-1 in
which, pursuant to 8 U.S.C. § 1182(f), the President suspended for 90 days the entry into the United States of immigrant and nonimmigrants who were nationals of Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen, based on his finding that such entry was “detrimental to the interests of the United States.” EO-1 § 3(c). Each of these countries has a predominantly Muslim population, including Iraq, Iran, and Yemen, which are more than 99 percent Muslim. The provision allowed for exceptions on a “case-by-case basis” when such an exception was “in the national interest.” EO-1 § 3(g). EO-1 also required changes to the refugee screening process “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” EO-1 § 5(b). It further provided that during this 90-day period, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence (“DNI”), was to initiate a review process beginning with “a review to determine the information needed from any country” to assess whether an individual from that country applying for a “visa, admission, or other benefit . . . is not a security or public-safety threat,” the generation of a list of countries that do not provide adequate information of this nature, and a consultation process to request such information from those countries. EO-1 § 3(a)-(d). At the end of this review process, the Secretary of Homeland Security was required to “submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit entry of foreign nationals . . . from countries that do not provide the information requested.” EO-1 § 3(e).
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When preparing to sign EO-1, President Trump remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. That same day, President Trump stated in an interview on the Christian Broadcasting Network that EO-1 would give preference in refugee applications to Christians. Referring to Syria, President Trump stated that “[i]f you were a Muslim you could come in, but if you were a Christian, it was almost impossible,” a situation that he thought was “very, very unfair.” J.R. 201. The day after EO-1 was issued, President Trump assured reporters that implementation of EO-1 was “working out very nicely and we’re going to have a very, very strict ban.” J.R. 123. That same day, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani, in consultation with others, proposed that the action be “focused on, instead of religion . . . the areas of the world that create danger for us,” specifically “places where there are [sic] substantial evidence that people are sending terrorists into our country.” J.R. 247-248.
EO-1 prompted several legal challenges, including an action filed in the United States District Court for the Western District of Washington based on the Due Process, Establishment, and Equal Protection Clauses of the Constitution that resulted in a nationwide temporary restraining order (“TRO”) issued on February 3, 2017 against several sections of EO-1. See, e.g., Washington v. Trump, C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). On February 9, 2017, the United States Court of Appeals for the Ninth Circuit, construing the order as a preliminary injunction, upheld the entry of the injunction. Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). Although it did not reach the Establishment Clause claim, the Ninth Circuit noted that the asserted claim raised “serious allegations” and presented “significant constitutional questions.” Id. at 1168. On February 13, 2017, the United States District Court
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for the Eastern District of Virginia found a likelihood of success on the merits of an Establishment Clause claim and issued an injunction against enforcement of Section 3(c) of EO1 as to Virginia residents or students enrolled a Virginia state educational institution. Aziz v. Trump, 234 F. Supp. 3d 724, 739 (E.D. Va. 2017).
In response to the injunctions against EO-1, President Trump maintained at a February 16, 2017 news conference that EO-1 was lawful but that a new Order would be issued. J.R. 91. Stephen Miller, Senior Policy Advisor to the President, described the changes being made to the Order as “mostly minor technical differences,” emphasizing that the “basic policies are still going to be in effect.” J.R. 319. White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same” and described EO-1 as a legal exercise of the President’s power “to suspend immigration.” J.R. 78, 118. As of February 12, 2017, Trump’s Statement on Preventing Muslim Immigration remained on his campaign website. J.R. 207. III. Executive Order 13,780
On March 6, 2017, President Trump issued EO-2, which was scheduled to go into effect and supplant EO-1 on March 16, 2017. Section 2(c) of EO-2 reiterated the 90-day ban on entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, but removed Iraq from the list. EO-2 applied only to individuals outside the United States who did not have a valid visa as of the issuance of EO-1 and who had not obtained one prior to the effective date of EO-2. In addition, the travel ban expressly exempted lawful permanent residents (“LPRs”), dual citizens traveling under a passport issued by a country not on the banned list, asylees, and refugees already admitted to the United States, and it provided a list of specific scenarios under which a case-by-case waiver could be granted.
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To justify its restrictions on entry by nationals of the listed countries, EO-2 stated that “the conditions in these countries present heightened threats” because each country is “a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” EO-2 § 1(d) (citing information from the State Department’s Country Reports on Terrorism 2015). EO-2 stated that, as a result, the governments of the listed countries were less willing or able to provide necessary information for the visa or refugee vetting process, such that there was a heightened chance that individuals from these countries would be “terrorist operatives or sympathizers.” EO-2 § 1(d). EO-2 therefore concluded that the risk of admitting individuals from these countries was “unacceptably high” because the United States was unable “to rely on normal decision-making procedures” about their travel. EO-2 § 1(b)(ii), (f). EO-2 disavowed that EO-1 was motivated by religious animus.
EO-2 also stated that “Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States” and referenced two Iraqi refugees who were convicted of terrorism-related offenses and a naturalized U.S. citizen who came to the United States from Somalia as a child refugee and had been convicted of a plot to detonate a bomb at a Christmas tree lighting ceremony. EO-2 § 1(h). It did not identify any instances of individuals who came from Iran, Libya, Sudan, Syria, or Yemen engaging in terrorist activity in the United States.
Like EO-1, EO-2 instructed the Secretary of Homeland Security, in consultation with the Secretary of State and the DNI, to conduct a worldwide review to determine whether additional information from foreign governments was needed to enable the United States to determine whether a foreign national applying for a visa or for admission was a security or public safety threat. The Secretary of Homeland Security was then required to submit a report within 20 days
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providing the results of the review, including listing countries that do not provide adequate information and identifying the needed information. The Secretary of State was then required to request that the listed countries begin providing the needed information within 50 days. At the end of the 50-day period, the Secretary of Homeland Security was to “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.” EO-2 § 2(f). The Secretary of Homeland Security could also identify other countries for other restrictions or limitations that would be appropriate.
The same day that EO-2 was issued, Attorney General Jefferson B. Sessions, III and Secretary of Homeland Security John F. Kelly submitted a letter to the President recommending a temporary suspension on the entry to the United States of nationals of certain countries so as to facilitate a review of security risks in the immigration system. Upon the issuance of EO-2, Secretary of State Rex Tillerson described it as “a vital measure for strengthening our national security.” J.R. 115. In a March 7, 2017 interview, Secretary of Homeland Security Kelly stated that the Order was not a Muslim ban but instead was focused on countries with “questionable vetting procedures,” but noted that there were 13 or 14 countries with questionable vetting procedures, “not all of them Muslim countries and not all of them in the Middle East.” J.R. 150. Other White House officials, noting that EO-2’s provisions were temporary, stated that the ban might be extended past 90 days and to additional countries. J.R. 116.
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IV. Litigation on EO-2 On March 10, 2017, the IRAP Plaintiffs amended their Complaint to seek the invalidation
of EO-2, alleging the same causes of action pleaded in their original Complaint. The IRAP Plaintiffs also filed a motion for a preliminary injunction against the enforcement of EO-2, on Establishment Clause and INA grounds. On March 15, 2017, this Court enjoined enforcement of Section 2(c) after finding that the IRAP Plaintiffs were likely to succeed on their claim that EO-2 violated the Establishment Clause. IRAP, 241 F. Supp.3d at 566. The same day, the United States District Court for the District of Hawaii issued a TRO, later converted to a preliminary injunction, barring enforcement of Sections 2 and 6 of EO-2. Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).
This Court’s Order was appealed to and in substantial part affirmed by the Fourth Circuit on May 25, 2017. IRAP, 857 F.3d 554, 606 (4th Cir. 2017) (en banc). In so ruling, the Fourth Circuit described EO-2 as one that “drips with religious intolerance, animus, and discrimination.” Id. at 572. After finding that an individual plaintiff had standing to challenge the ban and concluding that upon a showing of bad faith it could “look behind” a proffered “facially legitimate” reason for the action, the court applied standard Establishment Clause analysis to conclude that because EO-2 “cannot be divorced from the cohesive narrative linking it to the animus that inspired it . . . the reasonable observer would likely conclude that [EO-2’s] primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” IRAP, 857 F.3d at 586, 590-92, 601.
Meanwhile, the Ninth Circuit affirmed in substantial part the preliminary injunction ordered by the District of Hawaii on the grounds that EO-2 exceeded the President’s authority under the INA, primarily in that it did not contain a sufficient finding of detrimental interest as
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required by the statute and that it violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Hawaii v. Trump, 859 F. 3d 741, 774, 779 (9th Cir. 2017). The Government sought review of both the Fourth Circuit and Ninth Circuit decisions by the United States Supreme Court, which consolidated the cases for argument. Trump v. Int’l Refugee Assistance Project and Trump v. Hawaii, 137 S. Ct. 2080, 2086 (2017) (granting writ of certiorari). Pending resolution of those appeals, the Supreme Court declined the Government’s request to stay the injunctions of EO-2 in their entirety, but ordered a partial stay of the injunctions to permit their enforcement against only foreign nationals who lack a credible claim of a bona fide relationship with a person or organization within the United States. Id. at 2087.
In light of the expiration of EO-2, the Supreme Court requested supplemental briefing on whether the case relating to EO-2 is now moot. Trump v. IRAP, No. 16-1436, 2017 WL 2405595 (Sept. 25, 2017). On October 10, 2017, after that supplemental briefing, the Supreme Court vacated the judgment of the Fourth Circuit with instructions to dismiss as moot the challenge to EO-2. The Supreme Court expressed no opinion on the merits.1 Trump v. IRAP, No. 16-1436, 2017 WL 4518553 (Oct. 10, 2017). V. Public Statements Since EO-2
At a March 16, 2017 rally, President Trump reported to the audience that EO-2 had been enjoined and described it as a “watered down version of the first one” that had been “tailor[ed]” by lawyers in response to prior legal challenges. J.R. 652-53. He emphasized that “we ought to
1 Because the judgment of the Fourth Circuit has been vacated as moot, it has been “strip[ped] of its binding effect.” Deakins v. Monaghan, 484 U.S. 193, 200 (1988). Accordingly, this Court does not rely on the Fourth Circuit’s opinion as controlling authority and will review all legal questions decided by the Fourth Circuit anew, without reliance on that Court’s prior decision. However, as confirmed at the hearing on the Motions, the parties agree that the Court may cite the Fourth Circuit opinion as persuasive authority, so this Court does so on a limited basis.
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go back to the first one and go all the way, which is what I wanted to do in the first place.” J.R. 653.
On May 21, 2017, President Trump delivered a speech in Riyadh, Saudi Arabia to Arab and Muslim leaders as part of the Arab Islamic American Summit. Speaking as “a representative of the American people” delivering “a message of friendship and hope,” he decried terrorism, but cautioned that “the nations of the Middle East cannot wait for American power to crush this enemy for them,” but instead “have to decide what kind of future they want for themselves.” President Trump’s full speech from Saudi Arabia on global terrorism, Wash. Post (May 21, 2017), https://goo.gl/viJRg2. They had to “honestly confront” the “crisis of Islamic extremism and the Islamists and Islamic terror of all kinds.” Id.
In a June 3, 2017 tweet, President Trump emphasized the “need to be smart vigilant and tough,” and asserted, “We need the Travel Ban as an extra level of safety!” J.R. 662. In a series of tweets on June 5, 2017 referencing the court decisions relating to EO-1 and EO-2, President Trump stated, “[t]he lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” J.R. 664. He reiterated that “[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court],” and advised the Justice Department to “ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!” Id. The following day, White House Press Secretary Sean Spicer stated that President Trump’s tweets should be “considered official statements by the president of the United States.” J.R. 667.
In an August 17, 2017 tweet, Trump endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre of Muslims with bullets dipped in a
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pig’s blood, advising people to “[s]tudy what General Pershing … did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” J.R. 679. In a September 15, 2017 tweet, President Trump again insisted that “the travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!” J.R. 705. VI. Presidential Proclamation 9645
On September 24, 2017, President Trump issued Presidential Proclamation 9645, which immediately supplanted EO-2 as to foreign nationals who lack a credible claim of a bona fide relationship with a person or organization within the United States, and which is slated to go into effect on October 18, 2017 for all other individuals covered by its terms. The Proclamation stated that in a July 9, 2017 report issued pursuant to the requirements of EO-2, the Secretary of Homeland Security, in consultation with the Secretary of State and the DNI, had selected baseline criteria for assessing the sufficiency of the information provided by foreign governments to permit the United States to confirm the identities of individuals seeking to enter the country and make a security assessment about them.
Three categories of information were identified. The first is “identity-management information,” consisting of information necessary to confirm that individuals are who they claim to be. Criteria for assessing the sufficiency of information provided include whether a foreign government employs electronic passports embedded with data on the holder’s identity, reports lost or stolen passports, and provides other identity-related information not contained in passports. The second category is “national security and public-safety information,” relating to whether individuals seeking to enter the United States pose a national security or public safety risk, the criteria for which include whether a foreign government provides information on known or suspected terrorists and individuals’ criminal histories, shares exemplars of its passports and
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national identity documents, or impedes the transfer of information about passengers and crew traveling to the United States. The third category is “national security and public-safety risk assessment,” relating to risk indicators about the country itself, the criteria for which include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program, and whether it regularly refuses to accept its nationals subject to final orders of removal from the United States.
According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on these criteria. Of those, 16 nations were found to be “inadequate” and 31 were found to be at risk of becoming so. In accordance with Section 2(d) of EO-2, those nations were given 50 days to bring their information-sharing practices into compliance with United States expectations. At the end of that 50-day period, eight countries were determined to have continued inadequate information-sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. In a September 15, 2017 report to the President (“the DHS Report”), the Acting Secretary of Homeland Security recommended that entry restrictions be imposed on all of those countries with the exception of Iraq. Although Somalia’s information-sharing practices were found to be adequate, the Acting Secretary of Homeland Security recommended that Somalia also be subjected to entry restrictions.
As a result, the Proclamation states that “absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States” of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the “Designated Countries”) “would be detrimental to the interests of the United States.” Procl. pmbl. Specifically, the Proclamation suspends the entry of all immigrants from seven of the eight Designated Countries, excepting only Venezuela. The ban on entry by nonimmigrants is “more
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tailored,” with a narrower ban imposed on countries with mitigating circumstances such as a willingness to play a substantial role in combatting terrorism. Procl. § 1(h)(iii).
As to specific countries previously subject to EO-2’s travel ban, the Proclamation suspends entirely the entry of Iranian nationals on both immigrant and nonimmigrant visas, with an exception for individuals traveling on nonimmigrant, student (“F” and “M”) and exchange visitor (“J”) visas. However, Iranians traveling on F, M, and J visas are to be subjected to enhanced screening and vetting. As justification, the Proclamation asserts that Iran is a source of significant terrorist threats and a designated state sponsor of terrorism, and that it fails adequately to cooperate with the United States to identify security risks, has at least one unspecified national security risk factor, and refuses to accept its nationals slated for deportation.
The Proclamation suspends entry of all Libyan nationals as immigrants, as well as entry of nonimmigrants using business (“B-1”), tourist (“B-2”), or business/tourist (“B-1/B-2”) visas. These restrictions are based on the conclusions that Libya does not provide adequate public safety or terrorism-related information, has deficiencies in its identity-management protocols, has at least one unspecified national security risk factor, and does not reliably accept its nationals slated for deportation.
The entry of nationals from Somalia traveling on immigrant visas is suspended entirely, and adjudications for all nonimmigrant visas are to be subjected to additional scrutiny. According to the Proclamation, these restrictions are justified by the facts that the United States does not recognize the Somali electronic passport, Somalia has been designated a terrorist safe haven, and large parts of Somalia are outside the control of the central government such that its ability to share information about criminal and terrorist risks is compromised.
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Regarding Syria, the Proclamation suspends entirely the entry of all Syrian nationals, both immigrants and nonimmigrants, on the basis that Syria does not cooperate with the United States in identifying security risks, is a source of significant terrorist threats and has been designated a state sponsor of terrorism, does not provide adequate public safety or terrorismrelated information, has deficiencies in its identity-management protocols, and has at least one unspecified national security risk factor.
The Proclamation suspends entirely the entry of Yemeni nationals as immigrants, as well as entry of Yemeni nonimmigrants traveling under B-1, B-2, and B-1/B-2 nonimmigrant visas. As justification, the Proclamation notes that Yemen does not provide adequate public safety or terrorism-related information, has deficiencies in its identity-management protocols, has at least one national security risk factor, and has a terrorist presence.
As for countries identified for the first time in the Proclamation, entry of Chad nationals as immigrants is suspended entirely, as is entry of nonimmigrants using B-1, B-2, or B-1/B-2 visas. In support of this determination, the Proclamation asserts that Chad fails to provide adequate public safety and terrorism-related information, and that the nation has at least one unspecified national security risk factor.
All entry of North Korean visa holders, immigrant or nonimmigrant, is entirely suspended, because North Korea has reportedly failed in any way to cooperate or engage in information sharing with the United States.
Venezuela is the only designated country for which entry of immigrants is not suspended. Limitations on the entry of Venezuelan nationals are confined to barring entry of specific government officials and their immediate family members, who are suspended from traveling to the United States on B-1, B-2, and B-1/B-2 visas. All other Venezuelan nationals are to be
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subjected to enhanced screening and vetting procedures but are not otherwise banned from entry. The Proclamation reasons that although Venezuela fails to provide adequate terrorism-related or public safety information, has at least one unspecified national security risk factor, and does not reliably receive its nationals slated for deportation, there are other, unspecified sources available for verifying the identities of Venezuelan nationals.
These suspensions apply to foreign nationals of the Designated Countries who (1) are outside the United States on the applicable effective date of the Proclamation; (2) do not have a valid visa as of the applicable effective date of the Proclamation; and (3) are not among those entitled to receive a new visa or other travel document because their visas were revoked or canceled pursuant to EO-1. Excepted from the suspensions are a number of other individuals, including LPRs; dual nationals if traveling on a passport issued by a non-designated country; and foreign nationals who have been granted asylum status or who have been already admitted to the United States as refugees.
In addition to these delineated exceptions, the Proclamation provides for waivers, to be granted on a case-by-case basis by either a State Department consular officer or an official of United States Customs and Border Protection (“CBP”), based on criteria to be developed by the Secretary of State and the Secretary of Homeland Security. Any waiver granted by a consular officer would allow both the issuance of a visa and subsequent entry to the United States on that visa. The Proclamation expressly provides that waivers may be granted only upon a showing that (1) denying entry would cause the foreign national undue hardship, (2) allowing entry would not pose a national security or public safety threat, and (3) entry would be in the national interest.
The Proclamation charges the Secretary of Homeland Security, in consultation with the Secretary of State, to devise a process for determining whether the suspensions should be
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continued, terminated, modified, or supplemented. At 180-day intervals, the Secretary of Homeland Security, after consultation with the Secretary of State, the Attorney General, the DNI, and any other appropriate agency heads, is to submit a report and recommendations to the President on whether any such changes should be made, including whether similar suspensions should be imposed on additional countries. In addition, the Secretary of Homeland Security, after consulting with these same officials, may recommend modifications to the list of suspended countries at any time.
As noted, the Proclamation is already in effect as to foreign nationals currently barred by EO-2. For all other covered foreign nationals, it becomes effective on October 18, 2017.
In a joint declaration, 49 former national security, foreign policy, and intelligence officials who served in the White House, Department of State, Department of Homeland Security, Department of Defense, the Central Intelligence Agency, the United States Senate, and as ambassadors in Republican and Democratic Administrations, some of whom were aware of the available intelligence relating to potential terrorist threats to the United States as of January 19, 2017, state that “[a]s a national security measure,” the Proclamation is “unnecessary” and is of “unprecedented scope.” J.R. 770. Excluding North Korea and Venezuela, the Proclamation blocks over 150 million people from entering the United States on the basis of their nationality, despite the fact that “concrete evidence” has shown that “country-based bans are ineffective.” J.R. 771. The officials note that the Proclamation has internal inconsistencies, such as its uneven application to nonimmigrant visas, which are the most frequently used visas from the banned nations, and its failure to block individuals from non-Muslim majority countries with “widelydocumented” problems with information sharing, such as Belgium. J.R. 773. On this score, the officials note that no terrorist acts have been committed on U.S. soil by nationals of the
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Designated Countries in the last 40 years, and that no intelligence as of January 19, 2017 suggested any such potential threat. Nor, the former officials assert, is there any rationale for the abrupt shift from individualized vetting to group bans, particularly in light of the fact that the present system of individualized vetting places the burden of proving identity and eligibility for travel on the person seeking a visa. VII. The Plaintiffs
Plaintiffs, a combination of 23 individuals (“the Individual Plaintiffs”) and seven organizations (“the Organizational Plaintiffs”), assert that they will suffer harm from the implementation of the Proclamation in the form of prolonged separation of family members located in the Designated Countries and stigmatizing injuries arising from the anti-Muslim animus of the travel ban. Of the Individual Plaintiffs, nine are U.S. citizens or LPRs who have an approved visa petition on behalf of an Iranian-national parent, child, or sibling, consisting of IRAP Plaintiffs John Doe No. 4, Shapour Shirani, Fakhri Ziaolhagh, and Afsaneh Khazaeli; and IAAB Doe Plaintiffs Nos. 1-5. Two Plaintiffs, IAAB Doe Plaintiff No. 6 and Grannaz Amirjamshidi seek nonimmigrant visas for their Iranian-national mother or mother-in-law to visit the United States. Four Plaintiffs are U.S. citizens or LPRs with an approved visa petition for their Syrian-national family members, consisting of Mohamad Mashta,2 IRAP Plaintiff Jane Doe No. 2, and Zakzok Plaintiffs Jane Does No. 1-2. Zakzok Plaintiff Eblal Zakzok, an LPR, has submitted an immigrant visa petition for his Syrian-national daughter but it has not been approved, and Zakzok Plaintiff Sumaya Hamadmad has a sister, a Syrian national, who has applied for a nonimmigrant visa to visit the United States for an academic project. IRAP
2 At the time the IRAP Amended Complaint was filed, Plaintiff Mohamad Mashta had an approved I-130 visa petition for his Syrian-national wife and was awaiting a visa for her. At the hearing, counsel informed the Court that Mashta’s wife had been granted a visa and that she is on her way to the United States, which appears to render his claim moot.
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Plaintiffs John Doe No. 5 and Fahed Muqbil are U.S. citizens who have approved immigrant visa petitions for their Yemeni-national wife and mother, respectively. Zakzok Plaintiff Jane Doe No. 3 is a U.S. citizen who has a pending immigrant visa petition for her Somali fiancée. Three of the Individual Plaintiffs, specifically Mohammed Meteab, and IRAP John Does Nos. 1 and 3, are LPRs of Iranian or Iraqi descent who do not have immediate family members from one of the Designated Countries seeking an immigrant or nonimmigrant visa.
Of the Organizational Plaintiffs, three primarily provide services to clients. IRAP provides legal services to its clients, displaced persons around the world seeking to come to the United States, to help them navigate the refugee or immigrant application process. HIAS provides a variety of services to refugees, including assisting their clients with refugee resettlement in the United States. AAANY primarily serves the Arab-American and Arab immigrant community in New York City by providing legal and other services to its clients.
The remaining Organizational Plaintiffs convene events on issues relating to the Middle East or advocate on behalf of their members. MESA consists of over 2,400 graduate students and faculty around the world focused on the field of Middle Eastern studies. YAMA, a membership organization of Yemeni American merchants, seeks to protect its members from harassment and to assist them with immigration issues. IAAB organizes youth camps, educational events, and international conferences for the Iranian diaspora, including inviting prominent scholars from outside the country to speak at events. ISF is an affiliate of IAAB and organizes events and fundraisers for its members, approximately 30 Iranian American students at the University of Maryland. Additional facts relating to certain Organizational Plaintiffs are contained in the Court’s discussion of standing. See infra part I.A.
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CONCLUSIONS OF LAW In this Motion, Plaintiffs seek a preliminary injunction based on their claims that the Proclamation violates (1) the Immigration and Nationality Act, (2) the Establishment Clause, and (3) the Equal Protection Clause. I. Justiciability Defendants raise several arguments that Plaintiffs’ claims are not justiciable. Specifically, they assert that Plaintiffs lack standing, the claims are not ripe, the claims are barred by the doctrine of consular nonreviewability, and the statutory claims are not reviewable under the APA. A. Standing Article III of the Constitution limits the judicial power of the federal courts to actual “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. To invoke this power, a litigant must have standing. Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). A plaintiff establishes standing by demonstrating (1) a “concrete and particularized” injury that is “actual or imminent,” (2) “fairly traceable to the challenged conduct,” (3) and “likely to be redressed by a favorable judicial decision.” Id.; Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007). For claims involving a statutory cause of action, a plaintiff must also have interests that fall within the “zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014). Standing must be established for each claim. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The presence of one plaintiff with standing renders a claim justiciable. Bostic v. Schaefer, 760 F.3d 352, 370-71 (4th Cir. 2014).
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1. Immigration and Nationality Act The various Individual Plaintiffs assert standing based on the allegation that they are harmed by the prolonged separation from close family members who are unable to travel to the United States under the terms of the Proclamation. The Supreme Court has reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of a foreigner challenging the application of the immigration laws to that foreign individual. See Kerry v. Din, 135 S. Ct. 2128, 2131, 2138-42 (2015) (considering an action brought by a U.S. citizen challenging the denial of her husband’s visa); Kleindienst v. Mandel, 408 U.S. 753, 756, 762-65 (1972) (considering the merits of a claim brought by American plaintiffs challenging the denial of a visa to a Belgian journalist whom they had invited to speak in various academic forums in the United States); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998) (stating that because standing relates to a court’s power to hear and adjudicate a case, it is normally “considered a threshold question that must be resolved in [the litigant’s] favor before proceeding to the merits”); Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) (“Presumably, had the Court harbored doubts concerning federal court subject matter jurisdiction in Mandel, it would have raised the issue on its own motion.”). Other courts have done the same. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (considering an action by a United States citizen challenging the denial of her husband’s visa and holding that the citizen had a procedural due process right to a “limited judicial inquiry regarding the reason for the decision”); Allende v. Shultz, 845 F.2d 1111, 1114 & n.4 (1st Cir. 1988) (evaluating the merits of a claim brought by scholars and leaders who extended invitations to a foreign national challenging the denial of her visa).
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The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk, 785 F.2d at 1050 (finding that U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they had invited to “attend meetings or address audiences” in the United States); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) (“LAVAS”). In LAVAS, the court held that U.S. resident sponsors had standing to assert that the State Department’s failure to process visa applications of Vietnamese citizens in Hong Kong violated one of the same provisions at issue here, 8 U.S.C. § 1152, based on the cognizable injury of prolonged “separation of immediate family members” resulting from the State Department’s inaction. Id. at 471. And in a related case, the Ninth Circuit held that an individual plaintiff had standing to challenge EO-2 where the plaintiff’s mother-in-law was a Syrian national with a pending immigration visa application, because the “prolonged separation” from her constituted a sufficient injury-in-fact. Hawaii, 859 F.3d at 763.
Here, several Individual Plaintiffs, specifically IRAP Plaintiffs John Doe No. 4, John Doe No. 5, Jane Doe No. 2, Shapour Shirani, and Fakhri Ziaolhagh; IAAB Plaintiffs Doe Plaintiff No. 1, Doe Plaintiff No. 3, Doe Plaintiff No. 4, and Doe Plaintiff. No. 5; and Zakzok Plaintiffs Eblal Zakzok, John Doe No. 1, and Jane Doe No. 2 have standing to assert their claims that the Proclamation violates the INA. Each of these Plaintiffs are U.S. citizens or lawful permanent residents who have immediate family members who are nationals of the Designated Countries and currently in the process of securing a visa to come to the United States as immigrants. As one illustrative example, John Doe No. 4 is a U.S. citizen whose wife is an Iranian national
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seeking an immigrant visa to join him in the United States. Other Plaintiffs, including IRAP Plaintiff Grannaz Amirjamshidi, IAAB Plaintiff Doe Plaintiff No. 6, and Zakzok Plaintiff Sumaya Hamadmad have standing as U.S. citizens who are separated from close family members who are nationals of Designated Countries seeking nonimmigrant visas to travel to the United States. The Proclamation’s indefinite ban on the issuance of immigrant and nonimmigrant visas for nationals of the Designated Countries has imposed an actual, imminent injury on these Plaintiffs by prolonging their separation from their family members. See LAVAS, 45 F.3d at 471; Hawaii, 859 F.3d at 763. Because a “threat” of an injury that is “real and immediate” can support standing, Friends of the Earth, Inc. v Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000), it is not necessary that the family member’s visa application already be denied. Where the Proclamation halts issuance of visas to nationals of the Designated Countries indefinitely, the threat is quite real.
This injury is “fairly traceable” to the challenged practice in that the implementation of the travel ban imposed by the Proclamation would cause the prolonged separation, and an injunction against the Proclamation would likely redress that injury. See Hollingsworth, 133 S. Ct. at 2661. The Court therefore finds that these Individual Plaintiffs have standing to assert the claim that the Proclamation violates the INA.
The Organizational Plaintiffs assert standing for the INA claim in their own right and on behalf of their members. For an organization’s claim of standing, the Court conducts the same inquiry as in the case of an individual. Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012). An organization suffers an injury-in-fact when “a defendant’s actions impede its efforts to carry out its mission.” Lane, 703 F.3d at 674; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“Such concrete and demonstrable injury to the organization’s activities–with the
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consequent drain on the organization’s resources–constitutes far more than simply a setback to the organization’s abstract social interests.”). However, an injury to an organization generally does not arise from a decision to expend resources on member education or litigation in response to legislation. See Lane, 703 F.3d at 675.
Here, several organizations have asserted sufficient injury to their proprietary and organizational interests to constitute an injury-in-fact for standing purposes. Both MESA and IAAB argue that the Proclamation will disrupt upcoming conferences and events in the United States by preventing individuals from the Designated Countries from attending. Specifically, the Proclamation would bar scholars from some of the Designated Countries from MESA’s annual meeting in November, including one prospective attendee from Iran, which would harm MESA financially because approximately half of MESA’s budget is derived from the annual meeting. The inability of scholars to travel to the annual meeting would also hinder the exchange of ideas among scholars and thus adversely impact MESA’s mission of “fostering study and public understanding of the Middle East.” J.R. 430-31. Likewise, the Proclamation will prevent Iranian nationals from attending IAAB’s International Conference on the Iranian Diaspora, scheduled for April 2018 in New York, at which scholars, students, journalists, artists, and community leaders gather to exchange ideas on issues affecting the worldwide Iranian community. Where approximately half of the invited speakers for this event typically come from Iran, the inability of Iranian nationals to travel to the United States would hinder IAAB’s mission of “address[ing] issues affecting the Iranian Diaspora community.” Kharazzi Aff. ¶ 17, IAAB Mot. Prelim. Inj. Ex. 1, ECF No. 26-3. Although the Proclamation excepts Iranian nationals traveling on a student (F and M) or exchange visitor (J) visa, such visas typically are for individuals enrolling in an academic or vocational program or in a specific exchange visitor
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program such as an au pair, summer camp, or summer work travel program. See 22 C.F.R. §§ 41.61–41.62 (2017); U.S. Dep’t of State, 9 Foreign Affairs Manual §§ 402.5-5–402.5-6. Attendees at educational, professional, or business conferences would generally use a B-1 visa, which is now unavailable to Iranian nationals. See 9 Foreign Affairs Manual § 402.2-5(B)(5) (stating that one of the permitted activities on a B-1 visa is to “participate in scientific, educational, professional, or business conventions, conferences, or seminars”). The Proclamation also impacts IRAP’s ability to bring one of its Syrian-national employees back to the United States to participate in its annual, week-long strategic planning and training retreat at its headquarters in New York, which would adversely impact IRAP’s operations and mission.
These injuries are not “merely speculative.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). MESA has described at least one specific individual from Iran who would attend the MESA annual meeting and whose fees would have to be refunded if he cannot attend, and IRAP has referenced a specific employee who cannot receive the in-person training and participate in strategic planning at its annual retreat. Even without identifying specific individuals who will definitely be barred from entry into the United States to attend its events, IAAB has alleged that the Proclamation presently constrains their efforts to recruit attendees for their upcoming meetings and conferences and to secure their arrival in time for the events. Cf. Hawaii 859 F.3d at 766 (finding that Hawaii had standing based on its interest in students attending the University of Hawaii). Thus, the Proclamation would injure MESA, IAAB, and IRAP by impeding their efforts to accomplish their missions and by disrupting their ability to raise money, train staff, and convene programs designed to foster the free flow of ideas on topics of significance to their organization’s purpose. See Lane, 703 F.3d at 674.
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MESA, IAAB, and IRAP also fall within the zone of interests protected by the INA. Where MESA’s purpose is to foster “study and public understanding of the Middle East,” J.R. 431-32, and IAAB is focused on “address[ing] issues affecting the Iranian Diaspora Community, Kharazzi Aff. ¶ 17, these organizations necessarily engage in collaboration and exchange with foreign nationals who visit the United States. Accordingly, they necessarily have a substantial interest in the effective operation of the INA, particularly its provisions for admitting foreign scholars and other foreign nationals to the United States as nonimmigrants to attend educational conferences. See, e.g., 9 Foreign Affairs Manual § 402.2-5(B)(5). Likewise, as an organization focused on refugee resettlement, IRAP has a need to engage foreign-national employees familiar with parts of the world with refugee populations and periodically to have those employees travel to and from the United States for planning, direction, and training. It, too, has an ongoing interest in operation of the INA’s nonimmigrant visa provisions. See 9 Foreign Affairs Manual § 402.2-5(B)(3) (stating that one of the permitted activities on a B-1 visa is to “consult with business associates”). Thus, as organizations that depend on the entry of foreign nationals into the United States under the INA, MESA, IAAB, and IRAP are within the zone of interest of the law. See Abourezk, 785 F.2d at 1050-51 (finding that organizations that invited foreign nationals to the United States to speak at a rally had a cognizable stake in the Government’s interpretation of a provision of the INA).
The Court also finds that these organizational injuries are fairly traceable to Defendants’ actions and likely to be redressed by a favorable decision because the Proclamation imposes an entry ban on nationals from the Designated Countries who would otherwise be able to apply for visas to enter the United States and participate in the organizational events. See Hollingsworth,
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133 S. Ct. at 2661. Therefore, the Court finds that MESA, IAAB, and IRAP each have standing to challenge the Proclamation as a violation of the INA.
Finally, several organizations can assert standing as representatives of their members. To establish associational standing, an organization must establish that (1) its members would have standing to sue in their own right; (2) “the interests it seeks to protect are germane to the organization’s purpose”; and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); Lujan, 504 U.S. at 563 (stating that a single member with standing in his or her own right is sufficient to establish that an organization has standing). An organization must “make specific allegations establishing that at least one identified member had suffered or would suffer harm.” Southern Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)).
MESA and YAMA both identify at least one individual member who is a U.S. citizen or LPR seeking to secure an immigrant visa for a close relative from one of the Designated Countries. MESA alleges that one of its members of Syrian descent is imminently filing a petition seeking an immigrant visa for his mother-in-law, a Syrian national. YAMA asserts that one of its members, “Ahmed,” is a U.S. citizen whose wife has petitioned for his Yemeni national wife and their five Yemeni national children to immigrate to the United States.
The interests raised by Plaintiffs’ claims are germane to the organizations’ purposes. MESA seeks to foster greater understanding and dialogue with Middle East nations, including one or more of the Designated Countries. YAMA, in part, seeks to help Yemeni American business owners navigate immigration issues they face. Plaintiffs’ interest in obtaining an
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injunction to preserve the ability of foreign nationals from the Designated Countries to travel to the United States squarely relates to both of these missions. Finally, where the claims in these cases consist of constitutional and statutory challenges to the Proclamation, there is no discernible reason why the participation of individual members, as opposed to their representatives in the form of the organization, is required for the effective advancement of this lawsuit. With all the requirements met, the Court concludes that MESA and YAMA have standing to assert their INA claims on behalf of their members. See Hunt, 432 U.S. at 343.
2. Establishment Clause To have standing to assert an Establishment Clause claim, a plaintiff must meet the same elements as for any other claim: (1) a cognizable injury, (2) fairly traceable to the defendant’s actions; and (3) a likelihood that the injury will be redressed by a favorable decision. Suhre v. Haywood Cty., 131 F.3d 1082, 1085 (4th Cir. 1997). To show an injury in the context of the Establishment Clause, the plaintiff must have “personal contact with the alleged establishment of religion” resulting in a personal injury. Id. at 1086. The injury can take the form of noneconomic, intangible harm to spiritual beliefs, such as “[f]eelings of marginalization and exclusion” because “one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion that they are outsiders, not full members of the political community.” Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012); see Suhre, 131 F.3d at 1086; Awad v. Ziriax, 670 F.3d 1111, 1122-23 (10th Cir. 2012) (holding that a Muslim plaintiff residing in Oklahoma suffered a cognizable injury in the form of condemnation of his religion and exposure to “disfavored treatment” based on a voter-approved state constitutional amendment prohibiting Oklahoma state courts from considering Sharia law); Catholic League v. City & Cty. of San
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Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (stating that a “psychological consequence” constitutes a concrete injury where it is “produced by government condemnation of one’s own religion or endorsement of another’s in one’s own community”). The injury, however, needs to be a “personal injury suffered” by the plaintiff “as a consequence of the alleged constitutional error.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982).
Here, multiple Individual Plaintiffs have asserted “personal contact” with the Proclamation’s alleged Establishment Clause violation to demonstrate standing. As discussed above, multiple Plaintiffs have asserted that they have been personally injured by the Proclamation through the harm of prolonged separation from close relatives who would be barred from entry to the United States under the Proclamation. See supra Part I.A.1. Thus, contrary to Defendants’ claim, they are asserting a personal injury sustained as a consequence of the alleged constitutional error, not an injury to others. See Suhre, 131 F.3d at 1086 (finding that “unwelcome direct contact with a religious display that appears to be endorsed by the state” is a personal injury). It is this personal impact that separates the claims of Plaintiffs here from those in Valley Forge, in which the plaintiffs had merely read about a conveyance of property to a religious institution that they believed to be unfairly advantageous, Valley Forge, 454 U.S. at 468-69, 485, or in In re Navy Chaplaincy, 543 F.3d 756, 764 (D.C. Cir. 2008), in which Protestant Navy chaplains alleging that Catholic chaplains received a preference in the chaplain retirement system had observed the impact of the alleged Establishment Clause violation on others but had not suffered any personal consequences from it, id. at 764-65.
Several of these Plaintiffs have also asserted specific, intangible injuries resulting from this personal contact with the alleged Establishment Clause violation. Among the IRAP
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Plaintiffs, John Doe No. 4 states that he “felt insulted” by EO-1 and received “more suspicious looks from people,” which caused him to feel that “I am being labeled as a Muslim more often,” and that the Proclamation “has made me feel this more strongly” such that “I continue to feel demeaned by the ban.” J.R. 461-62. Jane Doe No. 2 states that she understands the Proclamation to fulfill campaign promises to condemn her religion, which has made her feel depressed and has caused her to question whether to remain in the United States because she does not want her children to face discrimination. Afsaneh Khazaeli states that the Proclamation and the predecessor travel bans have made him feel like a “second-class citizen” and has made his family the target of abuse and discrimination. J.R. 465-66. Shapour Shirani states that the anti-Muslim nature of the travel ban has made the separation from his wife “more painful,” and the Proclamation has made him “feel even worse” and worry that discrimination against Muslims will persist and interfere with his rights. J.R. 476-77.
Of the IAAB Plaintiffs, Doe Plaintiff No. 2, Doe Plaintiff No. 3, Doe Plaintiff No. 5, and Doe Plaintiff No. 6 have all expressed similar intangible harms arising from the Proclamation’s alleged Establishment Clause violation. For example, Doe Plaintiff No. 2 states that because the Proclamation “targets” her based on her religion, “I feel insecure and I fear for my safety and the safety of my loved ones,” and “I feel that I am being treated as an outsider in my own country.” Jane Doe No. 2 Aff. ¶ 9, IAAB Mot. Prelim. Inj. Ex. 3, ECF No. 26-5. Doe Plaintiff No. 3 has stated that she fears the Proclamation will result in “more hatred and attacks against my community” such that “I fear for my safety and the safety of my loved ones.” Jane Doe No. 3 Aff. ¶ 9, IAAB Mot. Prelim. Inj. Ex. 4, ECF No. 26-6. Both Doe Plaintiff No. 5 and Doe Plaintiff No. 6 express that they feel attacked, targeted, and disparaged by the Proclamation’s hostility to Muslims and that they fear for their safety as a result.
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Zakzok Plaintiffs Fahed Muqbil, Eblal Zakzok, Sumaya Hamadmad, John Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3 all express that they feel condemned, stigmatized, attacked, or discriminated against as a result of the Proclamation. For example, Fahed Muqbil feels “as if I and my fellow American Muslims are unwanted, different, and somehow dangerous” as a result of the Proclamation. Fahed Muqbil Decl.¶ 15, Zakzok Mot. Prelim. Inj. Ex. 1, ECF No. 6-1.
These feelings of marginalization constitute an injury in fact in an Establishment Clause case. See Moss, 683 F.3d at 607 (holding that a Jewish father and daughter suffered an injury when they felt like “outsiders” upon receiving a school letter stating that academic credit was available for taking a class at a Christian bible school). Furthermore, these injuries are traceable in whole or in part to the Proclamation, and an injunction is likely to redress these injuries by removing the stigma associated with the Proclamation. Multiple Individual Plaintiffs can establish both a personal contact with the alleged establishment of religion through the prolonged separation from their family members and a direct injury from the Proclamation through their feelings of marginalization and exclusion. These Plaintiffs include IRAP Plaintiffs John Doe No. 4, Jane Doe No. 2, and Shapour Shirani; IAAB Plaintiffs Doe Plaintiff No. 3, Doe Plaintiff No. 5, and Doe Plaintiff No. 6; and Zakzok Plaintiffs Eblal Zakzok, Jane Doe No. 2, and Sumaya Hamadmad.
Finally, MESA and YAMA, which have standing to assert an INA claim based on their representation of members injured by the Proclamation, likewise have standing to assert an Establishment Clause claim on behalf of their members. As discussed above, both have asserted that at least one specific member faces prolonged separation from a close relative as a result of the Proclamation. See supra Part I.A.1. Both also assert that the same member has experienced feelings of marginalization or emotional distress as a result of the Proclamation’s alleged anti-
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Muslim message. According to MESA, the various versions of the travel ban have caused its member “extreme stress” and “ma[d]e him feel unwelcome, even more so now that he is a citizen.” J.R. 429. According to YAMA, Ahmed, one of its members facing a prolonged separation from family, states that the ban has made him “scared here in the United States because the message is coming from the highest people in government that Muslims are terrorists.” J.R. 486.
Where both of these organizations have at least one member with both a personal contact with the alleged establishment of religion and a direct injury as a result of it, the injury-in-fact requirement has been satisfied. Since MESA serves to foster understanding of the Middle East, in which there are many predominantly Muslim nations, and YAMA was founded in part to oppose what its members perceived to be a Muslim ban arising from EO-1, the interests they seek to protect through an Establishment Clause claim are germane to their organizations’ purposes. Hunt, 432 U.S. at 343. Lastly, as discussed above, there is no discernible reason why the individual members themselves must participate in this suit, rather than their membership organization. Id. Accordingly, MESA and YAMA have standing to assert an Establishment Clause claim on behalf of their members.
Having found that multiple Individual and Organizational Plaintiffs have standing to assert both INA and Establishment Clause claims, the Court need not address whether the remaining Plaintiffs have standing. By not addressing those arguments, the Court does not convey any view on whether those Plaintiffs have standing to assert one or more claims.
B. Ripeness The Government also argues that Plaintiffs’ claims are not ripe because their relatives have not yet been denied both a visa and a waiver. For the Individual Plaintiffs discussed above
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whose family members are already in the process of seeking visas, denial of visas is generally mandated because they are ineligible based on the plain language of the Proclamation. Although a claim is generally not ripe if it is based on contingent future events, Texas v. United States, 523 U.S. 296, 300 (1998), the potential to receive a waiver does not render the claims unripe because the waiver process itself presents an additional hurdle not faced by other visa applicants which would delay reunification, thus creating a harm not contingent on future events. See Jackson v. Okaloosa Cty., 21 F.3d 1531, 1541 (11th Cir. 1994) (finding in a Fair Housing Act action that plaintiffs’ claim was ripe where, “assuming that [plaintiffs] successfully prove at trial that this [challenged] additional hurdle was interposed with discriminatory purpose and/or with disparate impact, then the additional hurdle itself is illegal whether or not it might have been surmounted”).
In assessing ripeness, courts are to consider the fitness of the issues for decision and the hardship to the parties of withholding judicial consideration. See Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). Where this case centers on legal issues arising from the Proclamation, which has been issued in its final form, and is not dependent on facts that may derive from application of the waiver process, it is now fit for decision. See Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). In light of the individual Plaintiffs’ circumstances, withholding judicial consideration of their claims until waivers are adjudicated would cause undue hardship in the form of additional prolonged separation. The Court therefore finds that the claims are now ripe.
C. Consular Nonreviewability Defendants argue that Plaintiffs’ claims are not justiciable pursuant to the doctrine of consular nonreviewability, citing Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1994).
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Defendants also cite United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), in which the Supreme Court held that a foreign national could not challenge the Attorney General’s decision to exclude her from the country and deny her a hearing to which she would ordinarily be entitled. Id. at 547. Defendants assert that, taken together, these cases establish that any judicial review of the President’s decision to exclude an alien for any reason is unreviewable.
Plaintiffs, however, challenge not individual visa decisions by consular officers, but the overarching travel ban policy imposed by the Proclamation. See Hawaii, 859 F.3d at 768 (rejecting the argument that consular nonreviewability barred judicial review of statutory claims challenging EO-2 and noting that “[c]ourts can and do review both constitutional and statutory challenges to the substance and implementation of immigration policy”) (citation omitted); Washington, 847 F.3d at 1162; Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985) (distinguishing challenges to consular decisions on individual visa applications from a challenge to general operational instructions promulgated by the Immigration and Naturalization Service); cf. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 940-41 (1983) (noting that although Congress has plenary authority over immigration, the Court could still review an immigration statute to ensure that it implemented that authority by “constitutionally permissible means”). The Defendants’ reliance on Knauff and Saavedra Bruno is thus misplaced. These decisions relate only to aliens appealing individual denials of entry into the United States. Knauff, 338 U.S. at 539; Saavedra Bruno, 197 F.3d at 1155, 1163-64. Where Plaintiffs include U.S. citizens asserting statutory and constitutional claims challenging a broader policy as opposed to individual consular determinations, the doctrine of consular nonreviewability is not applicable. See Hawaii, 859 F.3d at 768-69; see also IRAP, 857 F.3d at 587.
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D. APA Defendants assert that the APA has foreclosed the Plaintiffs’ statutory claims on multiple grounds. The APA provides standing for any party that is “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see LAVAS, 45 F.3d at 471. This general grant of standing is subject to several limitations. Judicial review is available only for “final agency action,” 5 U.S.C. § 704, and is not available if “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). First, Defendants argue that Plaintiffs cannot bring a claim under the APA because they are not “adversely affected or aggrieved” within the meaning of the APA. As discussed above, the Individual Plaintiffs and several Organizational Plaintiffs are within the zone of interests of the INA and are injured by the denial of immigrant or nonimmigrant visas for family members or expected conference attendees. See supra Part I.A.1. They are thus “adversely affected or aggrieved” by Defendants’ use of their authority under the INA. 5 U.S.C. § 702; see LAVAS, 45 F.3d 471-72 (finding that U.S. family members of Vietnamese nationals desiring to be processed for visas in Hong Kong but ordered to return to Vietnam were “aggrieved” under the APA and within the “zone of interests” of the INA); Abourezk, 785 F.2d at 1051 (finding that U.S. citizens who invited foreign nationals to speak were “aggrieved” by the State Department’s interpretation of an INA definition that led to the exclusion of the intended speakers). Second, Defendants assert that judicial review is not available because the Proclamation was issued by the President, not the head of a federal department or agency, and thus is not a “final agency action” within the meaning of the APA. In Franklin v. Massachusetts, 505 U.S. 788 (1992), the Supreme Court held that the President is not subject to the APA such that his actions cannot be reviewed under that law. Id. at 800-01. To the extent that the Plaintiffs seek
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an injunction against the President himself, this argument has merit. See id. at 802 (stating that “a grant of injunctive relief against the President himself is extraordinary and should . . . raise[] judicial eyebrows”); see also IRAP, 857 F.3d at 605. However, Plaintiffs have named as defendants federal agency officials who will implement the Proclamation. “[I]t is now well established” that “[r]eview of the legality of a Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1327-28 (D.C. Cir. 1996) (permitting judicial review of an Executive Order through a suit against the Secretary of Labor). Such review is warranted because there is a “strong presumption in favor of judicial review of administrative action.” Immigration and Naturalization Serv. v. St. Cyr, 533 U.S. 289, 298 (2001). As for Defendants’ claim that the agency action to date is not “final,” the Proclamation is already in effect as to certain individuals and is being enforced by federal agencies, and, as discussed above in relation to ripeness, a formal denial of a visa or waiver is not necessary for the case to be subject to review. See supra Part I.B.
Third, Defendants claim that review of the Proclamation is foreclosed by 5 U.S.C. § 701(a)(2) as “committed to agency discretion by law.” Under their view, Congress committed the use of § 1182(f) to the sole discretion of the President, such that a reviewing court has no manageable standard by which to evaluate it. Despite the Government’s asserted claim of a lack of intelligible standard, courts have had no difficulty reaching the merits of challenges to the President’s use of § 1182(f). See Sale v. Haitian Ctrs. Council, 509 U.S. 155, 187 (1993); Hawaii, 859 F.3d at 770-74; cf. Abourezk, 785 F.2d at 1051 (finding that the INA “does not commit to unguided agency discretion the decision to exclude an alien”).
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More generally, courts have regularly reviewed Presidential action, including action taken in the context of foreign policy and immigration, to ensure that it fits within the bounds of federal statutes. See, e.g., Sale, 509 U.S. at 187 (reviewing on the merits an INA challenge to President’s use of § 1182(f)); Dames & Moore v. Regan, 453 U.S. 654, 669-88 (1981) (reviewing on the merits an Executive Order regarding the attachment of Iranian assets pursuant to the International Emergency Economic Powers Act); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (establishing the framework for judicial review of Presidential action). Defendants’ contention that the Plaintiffs cannot contest the Proclamation in court cannot square with this body of precedent. The Court therefore finds that this case is justiciable and proceeds to the merits of the Plaintiffs’ claims. II. Legal Standard
To obtain a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each requirement as articulated. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010). Because a preliminary injunction is “an extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
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III. Likelihood of Success on the Merits Because “courts should be extremely careful not to issue unnecessary constitutional
rulings,” Am. Foreign Serv. Ass’n v. Garfunkel, 490 U.S. 153, 161 (1989) (per curiam), the Court first addresses the statutory claims and then proceeds, if necessary, to the constitutional claim.
A. Immigration and Nationality Act Plaintiffs assert that the Proclamation violates provisions of the INA. The formulation of immigration policies is entrusted exclusively to Congress. Galvan v. Press, 347 U.S. 522, 531 (1954). In the Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, Congress delegated some of its power to the President in the form of what is now Section 212(f) of the INA, codified at 8 U.S.C. § 1182(f) (“§ 1182(f)”), which provides that: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). Congress has also authorized the President to take action relating to entry into the United States in what is now Section 215(a) of the INA, codified at 8 U.S.C. § 1185(a) (“§ 1185(a)”): Unless otherwise ordered by the President, it shall be unlawful— (1) for any alien to depart from or enter or attempt to depart from or enter the
United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe. 8 U.S.C. § 1185(a)(1). The Proclamation relies on these two provisions as the statutory authority for the President’s action. Plaintiffs assert that the Proclamation violates the INA in three ways. First, they argue, as they did in challenging EO-2, that the Proclamation violates Section 202(a) of the INA,
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codified at 8 U.S.C. § 1152(a) (“§ 1152(a)”), which bars discrimination on the basis of nationality in the issuance of immigrant visas. Second, they assert that the Proclamation fails to comply with the requirement in § 1182(f) that the President find that the suspension of entry by nationals from the Designated Countries would “be detrimental to the interests of the United States.” Third, they contend that the Proclamation exceeds the authority granted by § 1182(f) because it effectively re-writes portions of the INA or otherwise intrudes on Congress’s legislative power.
1. Nationality Discrimination Plaintiffs argue that the Proclamation’s suspension of entry into the United States by immigrants from the Designated Countries violates the INA’s bar on discrimination based on nationality in the issuance of immigrant visas. In opposition, the Government asserts that the Proclamation was lawful because it was issued pursuant to § 1182(f), which grants the President broad authority to bar the entry of immigrants, and that the non-discrimination provisions of § 1152(a) do not limit the President’s § 1182(f) authority. Section 1152(a) provides that, with certain exceptions: No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.] 8 U.S.C. § 1152(a)(1)(A). Section 1152(a) was enacted as part of the Immigration and Nationality Act of 1965, which was adopted expressly to abolish the “national origins system” imposed by the Immigration Act of 1924, which keyed yearly immigration quotas for particular nations to the percentage of foreign-born individuals of that nationality who were living in the continental United States, based on the 1920 census, in order to “maintain, to some degree, the ethnic
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composition of the American people.” H. Rep. No. 89-745, at 9 (1965). President Lyndon B. Johnson sought this reform because the national origins system was at odds with “our basic American tradition” that we “ask not where a person comes from but what are his personal qualities.” Id. at 11.
In reviewing the motion for a preliminary injunction of EO-2, this Court considered the interplay between § 1182(f) and § 1152(a) and concluded, based on canons of statutory construction, that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas. See IRAP, 241 F. Supp.3d at 553-56. The Court reaches the same conclusion here as to both § 1182(f) and § 1185(a). Under the canon that a later-adopted provision controls over an earlier one, § 1152(a), enacted in 1965, controls over § 1182(f) and the relevant text of § 1185(a)(1), enacted in 1952.3 See Watt v. Alaska, 451 U.S. 259, 266 (1981). Section 1152(a) is also the more specific provision, in that it requires a particular result, namely non-discrimination in the issuance of immigrant visas on specific, enumerated bases, while § 1182(f) and § 1185(a) mandate no particular action, but instead set out general parameters for the President’s power to bar entry and impose rules and regulations on entry and departure. Thus, to the extent that § 1152(a) may conflict with § 1182(f) and § 1185(a) on whether the President can bar the issuance of immigrant visas based on nationality, § 1152(a), as the more specific provision, controls. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (“The general/specific canon is perhaps the most frequently applied . . . To eliminate the contradiction, the specific provision is construed as the exception to the general one.”); Edmond v. United States, 520 U.S.
3 Section 1185 was amended in 1978, to broaden its applicability beyond times of war or national emergency, but the operative language of § 1185(a)(1) remained unchanged. See Foreign Relations Authorization Act, Fiscal Year 1979, Pub. L. No. 95-426, § 707(a), 92 Stat. 992-993 (1978).
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651, 657 (1997) (“Ordinarily, where a specific provision conflicts with a general one, the specific governs.”); United States v. Smith, 812 F.2d 161, 166 (4th Cir. 1987).
Finally, it is highly significant that § 1152(a) explicitly excludes certain sections of the INA from its scope, specifically §§ 1101(a)(27), 1151(b)(2)(A)(i), and 1153, but does not exclude § 1182(f) or § 1185(a) from its reach. 8 U.S.C. § 1152(a)(1)(A). The absence of any reference to § 1182(f) or § 1185(a) among these exceptions provides strong evidence that Congress did not intend for those provisions to be exempt from the anti-discrimination provision of § 1152(a). United Dominion Indus., Inc. v. United States, 532 U.S. 822, 836 (2001) (“[T]he mention of some implies the exclusion of others not mentioned.”); Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861, 865 (4th Cir. 2001) (noting that Congress “knows how to expand the jurisdictional reach of a statute”). Thus, pursuant to § 1152(a), a proclamation under § 1182(f) or § 1185(a) may not discriminate in the issuance of immigrant visas.
This conclusion is consistent with that of the Ninth Circuit, which found a likelihood of success on the merits of the claim that EO-2’s ban on entry by immigrants based on nationality exceeded the President’s § 1182(f) authority, concluding that “§ 1152(a)(1)(A)’s nondiscrimination mandate cabins the President’s authority under § 1182(f).” Hawaii, 859 F.3d at 778. To reach this determination, the Ninth Circuit similarly applied the canons of statutory construction and relied on the facts that § 1152(a) was more recently enacted, § 1152(a) was the more specific statute, and § 1182(f) was not listed among sections of the INA exempt from the non-discrimination requirements of § 1152(a)(1)(A). See id. at 778.
The Government argues that the Proclamation does not conflict with § 1152(a) because it suspended the entry of immigrants, not the issuance of visas. There is a textual difference. Section 1182(f) authorizes the President to bar “entry” to certain classes of aliens. 8 U.S.C. §
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1182(f). Section 1152(a) bars discrimination based on nationality in the “issuance of an immigrant visa.” Id. § 1152(a)(1)(A). These activities, however, usually go hand-in-hand. An immigrant cannot seek entry without first obtaining an immigrant visa. But receiving an immigrant visa is meaningless without later receiving permission to enter. Thus, the denial of entry to immigrants would generally have the effect of causing the denial of immigrant visas. See Hawaii, 859 F.3d at 776 (holding that the EO-2’s suspension on entry “in substance operates as a ban on visa issuance on the basis of nationality”); see also IRAP, 857 F.3d at 637 (Thacker, J., concurring) (“Here, the ultimate effect of what EO-2 actually does is require executive agencies to deny visas based on nationality.”). If § 1182(f) can be used to deny entry based on nationality, “the President could circumvent the limitations set by § 1152(a)(1)(A) by permitting the issuance of visas to nationals of . . . designated countries, but then deny them entry. Congress could not have intended to permit the President to flout § 1152(a) so easily.” Hawaii, 859 F.3d at 777.
There may be scenarios under which denial of entry based on nationality under § 1182(f) or § 1185(a) could be deemed to have such a limited impact that it would not also effect a denial of an immigrant visa. For example, a nationality-based denial of entry of limited duration, such as during a specific urgent national crisis or public health emergency, that was not designed to halt visa issuances but instead simply to impose a delay or limitations on migration, arguably would not result in discrimination in the issuance of immigrant visas in violation of § 1152(a). President Reagan’s 1986 decision to bar entry to Cuban nationals in retaliation for Cuba’s suspension of an immigration agreement and facilitation of illegal migration into the United States, the only historical example of the use of § 1182(f) authority to bar entry based on nationality, falls into this category. That bar of entry, by its own terms, was to continue only
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until “the restoration of normal migration procedures between the two countries.” Proclamation 5,517, 51 Fed. Reg. 30,470 (Aug. 22, 1986). Likewise, President Carter’s invocation of 8 U.S.C. § 1185(a)(1) in response to the Iran Hostage Crisis authorized “limitations and exceptions on the rules and regulations governing the entry” of Iranians into the United States without any reference to visa issuance. Exec. Order 12,172, 44 Fed. Reg. 67947 (Nov. 26, 1979); Exec. Order 12,206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). Accordingly, when considering EO-2, which imposed only a 90-day “temporary pause” during which some entry could have been denied without impacting the issuance of visas, this Court drew a distinction between entry and visa issuance. See IRAP, 241 F. Supp.3d at 556.
Here, however, the Proclamation has no specified end date and no requirement of renewal. Where the Proclamation has effectively imposed a permanent, rather than temporary, ban on immigrants from the Designated Countries, and has effectively stopped the issuance of immigrant visas indefinitely, the bar on entry is the equivalent of a ban on issuing immigrant visas based on nationality. This conclusion is supported by the Proclamation itself, which, even more than EO-2, makes clear that its intended effect is to deny the issuance of immigrant visas, in violation of § 1152(a). First, unlike EO-2, which generally barred entry by nationals of the Designated Countries, the Proclamation explicitly and specifically targets nationals seeking to immigrate to the United States. The Proclamation states, “For all but one of those 7 countries . . . I am restricting the entry of all immigrants.” Procl. § 1(h)(ii). Second, the text of the Proclamation reveals that its primary effect is not that nationals of the Designated Countries holding immigrant visas will be denied entry at the border by CBP, but that the State Department and consular officers will stop issuing immigrant visas to such nationals. Indeed, the Proclamation actually permits entry by any nationals holding approved visas. Id. § 3(a)(iii).
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Thus, as a result of the Proclamation, Defendants will effect the travel ban by no longer issuing immigrant visas to nationals of the Designated Countries. Moreover, the fact that the Proclamation provides that the Secretary of State and consular officers may grant waivers to the entry ban, Procl. § 3(c), further reveals that the Proclamation generally imposes a ban on visa issuance, because those officials’ statutory role is to issue visas, not to oversee actual entry into the United States. See 8 U.S.C. § 1101(a)(16) (stating that an “immigrant visa” is “issued by a consular officer”). Indeed, the Proclamation erases the line between the issuance of a visa and entry into the United States when it specifically provides that a waiver issued by a consular officer “will be effective both for the issuance of a visa and for any subsequent entry on that visa.” Procl. § 3(c)(iii). Finally, any claim that the Proclamation relates only to the question of entry to the United States is belied by its multiple references to visa issuance, including the provision stating that “visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny.” Procl. § 2(h)(ii). Notably, the State Department publicly describes the Proclamation not as limiting entry, but as a “Presidential Proclamation on Visas.” New Presidential Proclamation on Visas September 24, 2017, U.S. Department of State, Bureau of Consular Affairs (Sept. 24, 2017), https://travel.state.gov /content/travel/en/news/important-announcement.html. Because § 1152(a) does not permit such discriminatory denials of immigrant visas, the Proclamation exceeds the President’s statutory authority under § 1182(f) and § 1185(a). See Abourezk, 785 F.2d at 1061 (noting that the President’s authority in the immigration context derives from “the statutory authority conferred by Congress”).
Defendants’ remaining arguments do not alter this conclusion. Defendants unpersuasively claim that § 1182(f) and § 1185(a) do not conflict with § 1152(a) because they
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“limit the universe of individuals eligible to receive visas” to which the non-discrimination provision of § 1152(a) would apply. This argument fails because there is nothing in the text of either statute that remotely suggests that they serve any function relating to visa eligibility. Moreover, acceptance of the Government’s construction, under which discrimination would be permitted before the application of the non-discrimination provision, would render § 1152(a) meaningless. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973) (stating that “all parts of a statute, if at all possible, are to be given effect”).
Likewise, the Court finds unpersuasive Defendants’ assertion that nationality discrimination is permissible under 8 U.S.C. § 1152(a)(1)(B), which states that “[n]othing in [§ 1152(a)] shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” This provision applies only to the Secretary of State and thus does not provide a basis to uphold discriminatory action in a Presidential Proclamation. More importantly, where the Proclamation now imposes an indefinite travel ban based on nationality, rather than a 90-day “pause,” such an action cannot fairly be construed as a change in “procedures” or the “location” of visa processing. § 1152(a)(1)(B).
The Court therefore finds that Plaintiffs are likely to succeed on the merits of their claim that the Proclamation violates the non-discrimination provision of § 1152(a) to the extent that it bars entry by immigrants on the basis of nationality. Because this argument does not apply to nonimmigrants seeking entry to the United States, the Court must consider Plaintiffs’ remaining statutory arguments.
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2. Section 1182(f) Finding Plaintiffs further contend that the President has failed to make an adequate finding to support his invocation of authority under § 1182(f). Section 1182(f) requires that the President find that the entry of a class of aliens would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f) (emphasis added); see also Hawaii, 859 F.3d at 770, 774 (concluding that EO-2 did not contain adequate findings that the entry of nationals from the countries subject to that travel ban would be detrimental to the interests of the United States). The INA does not define key elements of this requirement, such as “find” or “detrimental to the interests of the United States.” See 8 U.S.C. § 1101 (defining terms used in the INA). “Classes of aliens” is also not defined, but examples are given in 8 U.S.C. § 1182(a). These examples include aliens who have “engaged in a terrorist activity,” § 1182(a)(3)(B)(i)(I), and “illegal entrants and immigration violators,” § 1182(a)(6). None of these examples are based on nationality. See §§ 1182(a)(1)(10). The President explicitly made the finding that “absent the security measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons” barred from entry by the proclamation “would be detrimental to the interests of the United States.” Procl. pmbl. In support of that finding, the Proclamation describes two purposes. First, the Proclamation helps to prevent the “entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States.” Procl. § 1(h)(i). Second, the Proclamation will help “elicit improved identitymanagement and information-sharing protocols and practices from foreign governments” and thus “advance foreign policy, national security, and counterterrorism objectives.” Id. The Proclamation contains additional information in support of its conclusion that a ban on entry of
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Designated Country nationals will further these two goals. With regard to addressing information deficiencies, the Proclamation states that “information-sharing and identitymanagement protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols of the United States,” and, citing the September 15, 2017 DHS Report, concludes that seven of the Designated Countries “continue to have ‘inadequate identity-management protocols, information-sharing practices, and risk factors.” Procl. § 1(b), (g). It further states that Somalia, although not identified as inadequate in the DHS Report, “lacks command and control of its territory” such that its ability to share information about nationals who pose terrorist risks is compromised. Id. § 2(h)(i). Without this information from the Designated Countries, the President finds, nationality-based restrictions are needed to prevent the entry of individuals about whom there is insufficient risk information. Id. § 1(h)(i). According to the Proclamation, a nationality-based policy also fits with the diplomatic purpose of the Proclamation to encourage foreign governments to improve their information-sharing practices. See Hawaii, 859 F.3d at 772 n.13 (noting that the two past nationality-based entry bans as to Cuba and Iran were for “retaliatory diplomatic measures responsive to government conduct”).
Plaintiffs assert compelling arguments that the Proclamation’s nationality-based restrictions are not actually necessary. Under current policy, applicants for immigrant or nonimmigrant visas, not their governments, are required to produce the information necessary to demonstrate that they are eligible to enter the United States. See 8 U.S.C. § 1361. Dozens of former national security officials have stated that this travel ban is unnecessary, that it serves no national security purpose, and that there is no evidence that the United States needs to shift away from this individualized vetting system to nationality-based bans. See Joint Decl. of Former
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Nat’l Sec. Officials, J.R. 770. Notably, the Proclamation does not provide examples of vetting failures involving nationals from the Designated Countries that resulted in the entry of terrorists or others who should not have been admitted.
Plaintiffs also question the choices made in the Proclamation given that Somalia met the Proclamation’s baseline criteria and was included in the entry ban, while Iraq did not meet the baseline criteria but was not included. Procl. § 1(g), 2(h). Further, the Proclamation appears to be overbroad with regard to its purported goals. It prohibits almost all Designated Country nationals from entering the United States, regardless of age, health, or even connection to the Designated Country itself. At least one of the Plaintiffs, Dr. Sumaya Hamadmad, seeks to reunite with her sister, a Syrian national who has spent her entire life in Jordan, about whom the Syrian government would have no relevant information.
Under a more robust standard of review, these criticisms might carry the day. But there is no requirement that a § 1182(f) entry restriction meet more stringent standards found elsewhere in the law, such as that it be “narrowly tailored” or the “least restrictive means” to obtain its stated aims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993); 42 U.S.C. § 2000bb-1(b)(2) (2012). The text of § 1182(f) does not even require the President to find that suspending the entry of a class of aliens would be detrimental to national security, only that it is detrimental to the interests of the United States. 8 U.S.C. § 1182(f). Under this broad standard, previous § 1182(f) proclamations have provided far less detail regarding their findings. See, e.g., Proclamation 8,015, 71 Fed. Reg. 28,541 (May 12, 2006) (barring entry of members of the Government of Belarus based on “the importance to the United States of fostering democratic institutions in Belarus”); Exec. Order. No. 12,807, 57 Fed. Reg. 21,133 (May 24, 1992) (barring entry of “any defined vessel carrying [illegal] aliens” based
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on a finding that “there continues to be a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally”). Against this background, the Court cannot conclude that Plaintiffs are likely to succeed on their claim that the Proclamation fails to make a finding of detrimental interest sufficient to invoke § 1182(f).
3. Section 1182(f) Authority Lastly, Plaintiffs argue that the Proclamation’s ban on entry of nationals from the Designated Countries exceeds the authority granted to the President in § 1182(f). Specifically, Plaintiffs assert that the Proclamation effectively revises the INA by imposing alternative visa issuance criteria that conflict with statutory criteria and thereby overrides Congress’s policy judgments, particularly those made in establishing the Visa Waiver Program (“VWP”). Defendants counter that (1) the issue of whether the Proclamation exceeds the authority granted in § 1182(f) is not judicially reviewable; and (2) even if subject to review, the Proclamation is an appropriate use of the President’s broad authority under § 1182(f). Although the Proclamation also relies on § 1185(a)(1), the parties do not argue that this section provides broader authority than § 1182(f). Therefore, the Court need only consider whether the Proclamation exceeds the President’s delegated authority under § 1182(f). The Court first addresses Defendants’ claim that the President’s exercise of authority pursuant to § 1182(f) is not subject to judicial review. In Defendants’ view, review of § 1182(f) would be inappropriate because it would amount to a second-guessing of a decision that is appropriately committed to the President. Yet the Supreme Court had no difficulty reaching the merits of a challenge asserting that the President’s use of § 1182(f) to blockade illegal migrants from Haiti violated another provision of the INA. See Sale, 509 U.S. at 170-74, 187. Moreover, in evaluating Plaintiffs’ argument, the Court is not second-guessing the President’s discretion,
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but examining whether the Proclamation fits within the President’s grant of authority. Such review of whether executive action exceeds statutory authority is plainly within the purview of the courts. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015) (reviewing whether the President’s decision to not list “Jerusalem, Israel” as a birthplace on a passport conflicted with a provision of the 2003 Foreign Relations Authorization Act); Dames & Moore, 453 U.S at 668 (stating, in reviewing a claim that President Carter’s actions in freezing Iranian assets during the Iran Hostage Crisis exceeded his statutory and constitutional authorities, that “the validity of the President’s action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action”). Thus, the Court rejects the argument that it may not review Plaintiffs’ claim that the Proclamation exceeds the authority granted in § 1182(f).
Plaintiffs’ claim centers on two alleged transgressions. First, Plaintiffs argue that the Proclamation imposes new criteria on the issuance of visas that conflict with Congress’s statutorily established criteria. Indeed, although the text of § 1182(f) authorizes the President only to “suspend the entry” of classes of immigrants and nonimmigrants, the Proclamation goes further. The Proclamation does not stop nationals of the Designated Countries from entering the United States if they already have a valid visa or if they are able to obtain one through the processes described in the Proclamation. Rather, as with EO-2, the Proclamation effectuates the travel ban by using the visa issuance process. See Hawaii, 859 F.3d at 777 (noting the Government’s acknowledgment that “the entry ban” under EO-2 “would be implemented through visa denials”). Thus, Plaintiffs correctly observe that the Proclamation goes beyond mere suspension of entry and delves into the criteria for issuing visas to nationals of the
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Designated Countries. Specifically, the Proclamation allows a consular officer to issue waivers to such nationals that would be “effective both for the issuance of a visa and for any subsequent entry on that visa.” Procl. § 3(c)(iii). These waivers may be granted only if a foreign national demonstrates that denial of entry would cause “undue hardship,” that entry would not pose a threat to the United States, and that entry will be in the “national interest.” Procl. §§ 3(c)(i)(A), (C). The Proclamation then directs the Secretary of State and the Secretary of Homeland Security to establish guidance for consular officials to use when making waiver determinations and establishes factors that the guidance must consider along with specific factual scenarios that would generally justify a waiver.
Arguably, these criteria conflict with Congress’s detailed system governing the issuance of immigrant and nonimmigrant visas. As part of this system, Congress places on applicants for visas the burden to establish eligibility, including to show that they do not fall into any categories of individuals ineligible for visas. See 8 U.S.C. § 1361; id. § 1182(a). These categories include those with possible links to terrorism or criminal activity. See 8 U.S.C. §§ 1182(a)(2)-(3)(B). Plaintiffs thus assert, with some force, that the Proclamation adds additional criteria that nationals of the Designated Countries must satisfy before they can obtain an immigrant or nonimmigrant visa to gain entry to the United States. This addition of such criteria, Plaintiffs argue, impermissibly replaces Congress’s list of criteria with the President’s own. The Court agrees that, as constructed, the Proclamation effectively adds new criteria for the issuance of visas and entry by nationals of certain countries beyond those formally imposed by Congress.
Second, Plaintiffs argue that the Proclamation exceeds the bounds of § 1182(f) because it conflicts with Congress’s policy judgments in addressing the same problem purportedly addressed by the Proclamation: poor information sharing by foreign governments. As evidence,
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Plaintiffs reference the VWP, established by Congress, which allows nationals of certain foreign countries to enter the United States for periods of less than 90 days without a visa. 8 U.S.C. § 1187(a)(1). To be eligible for this program, a country must meet certain standards relating to cooperation and the sharing of information with the United States. § 1187(c)(2). Notably, many of the standards applied to determine if a country qualifies for the VWP are strikingly similar to those considered in the Proclamation. For example, among the criteria for VWP eligibility are whether a country provides its nationals with an electronic machine-readable passport containing biographic and biometric data, § 1187(a)(3), and whether the country reports lost and stolen passports to the United States, § 1187(c)(2)(D). The Proclamation lists these same criteria as “identity management information” considered in the assessment whether a country should be added to the travel ban list. Procl. § 1(c)(i). Other VWP criteria include whether a foreign government shares information on whether its nationals traveling to the United States pose a security threat, 8 U.S.C. § 1182(c)(2)(F), the same type of information considered by the Proclamation under the category of “National security and public-safety information,” Procl. § 1(c)(ii). Likewise, the VWP considers whether a country is a safe haven for terrorists, 8 U.S.C. § 1187(a)(12)(D)(ii)(III), and whether the country generally accepts the repatriation of its own nationals subject to orders of removal from the United States, § 1187(c)(2)(E). These factors, along with whether a country is a participant in the VWP program itself, are the “National security and public-safety risk assessment” factors considered by the Proclamation in assessing whether a country should be subject to the travel ban. Thus, in determining which countries to subject to a travel ban, the Proclamation duplicates many of the same criteria, and revisits many of the same issues, that Congress considered in crafting the VWP.
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Further, the Proclamation imposes a travel ban on some of the same nations, based on the some of the same criteria, on which Congress imposed lesser restrictions in its recent amendments to the VWP. In 2015, Congress amended the VWP to exclude individuals from participating countries who were dual citizens of, or had traveled to, Iraq, Syria, a country designated by the State Department as a state sponsor of terrorism (Iran, Syria, and Sudan), or other countries designated by the Department of Homeland Security (Libya, Somalia, and Yemen). See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, Div. O, Title II, § 203, 129 Stat. 2242 (codified at 8 U.S.C. § 1187(a)(12)). For example, a French national who had traveled to Syria or was also a Syrian national would not be eligible for visa-free travel to the United States, even though France is a VWP country. Instead, Congress required such an individual to apply for a nonimmigrant visa and submit to a consular interview and adjudication by a consular officer. See 8 U.S.C. § 1187(a)(12). In light of this statutory scheme, Plaintiffs argue that the Proclamation exceeds the bounds of § 1182(f) because it conflicts with Congress’s policy judgments relating to the same issues and same nations. The Court agrees with Plaintiffs that the Proclamation addresses some of the same issues considered by Congress, specifically, information sharing by foreign nations relating to travel of foreign nationals to the United States and the consequences for failing to engage in it, and that the Proclamation imposes significantly more restrictive limitations that go beyond what Congress has previously imposed.
Contrary to the Defendants’ characterization, Plaintiffs’ claim is not one of implied repeal. See Branch v. Smith, 538 U.S. 254, 273 (2003) (establishing the standard for claims that a later provision has effectively revealed a prior provision). No one is arguing that § 1182(f) has effectively been repealed. Rather, Plaintiffs’ argument appears to be that Congress’s legislative
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action, in enacting the VWP and criteria for issuance of visas, has implicitly limited the President’s § 1182(f) authority to bar intrusions into these areas. In a different context, the Supreme Court recognized a similar theory when it held that “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (holding that the Food and Drug Administration’s statutory authority to regulate medical “devices” did not extend to regulation of tobacco, in part because Congress’s frequent legislation relating to tobacco signaled that Congress did not intend that result). Indeed, not only has Congress amended the VWP as recently as 2015, but it has regularly revised various aspects of the immigration system affecting visa issuance over the past 15 years. See, e.g., Consolidated Appropriations Act, Pub. L. No. 110-161, Div. J, § 691(d), 121 Stat. 1844 (2008) (designating the Taliban as a terrorist organization representatives of which are inadmissible under the INA); Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7203, 118 Stat. 3638 (requiring that all visa applications be reviewed and adjudicated by a consular officer). Thus, Plaintiffs have offered a legitimate theory that the Proclamation has gone beyond suspending entry into legislating changes to Congress’s statutory scheme.
However, this theory is undermined in two ways. First, with respect to the new visa issuance criteria arising from the waiver provisions, § 1182(f) explicitly grants the President the authority not just to suspend entry, but to “impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f). Thus, even if the waiver requirements are deemed to be additional criteria that must be met by an alien seeking admission, a fair reading of §
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1182(f) is that it allows the President to impose such additional restrictions outside of previously listed requirements.
Second, it is not clear that the Proclamation directly conflicts with the judgments reflected in Congress’s construction of the VWP. The VWP covers certain participating countries that have agreed to abide by certain conditions set by the United States, including information-sharing conditions, in exchange for visa-less travel to the United States for their nationals. See 8 U.S.C. § 1187(c)(2). It does not directly address whether nationals of certain non-VWP countries should be subject to even greater scrutiny than the standard visa issuance process. Likewise, the 2015 amendments related to the treatment of nationals of VWP countries who were either dual nationals of or had traveled to certain countries, including five of the countries covered by the Proclamation. See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 § 203. Those individuals are not affected by the Proclamation. See Procl. § 3(b)(iv) (excepting dual nationals of Designated Countries traveling on a passport of a different country). Thus, although the Proclamation and the VWP address similar problems and consider similar factors, the two are not in such conflict that the VWP could fairly be deemed to foreclose the restrictions imposed through the Proclamation pursuant to § 1182(f). The Court therefore does not conclude that there is a likelihood of success on the claim that the Proclamation has effectively legislated changes to the INA in contravention of Congressional intent.
Finally, Plaintiffs point to the sheer scope of the Proclamation and argue that it must be beyond the limit of any authority delegated by Congress. Indeed, the Proclamation is unique among past invocations of § 1182(f). Of the 42 proclamations issued pursuant to § 1182(f) or § 1185(a)(1) prior to EO-1, none have sought to ban entry by nationals of more than one country at
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once, let alone eight countries with approximately 150 million nationals. See Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief 6-10 (2017). The only uses of § 1182(f) or § 1185(a)(1) to bar entry by nationals of a specific country were triggered by a specific foreign policy dispute: the Iran Hostage Crisis and a decision by the Cuban government to cancel a migration agreement with the United States. Exec. Order No. 12,172, 44 Fed. Reg. 67947; Exec. Order No. 12,206, 45 Fed. Reg. 24,101; Proclamation No. 5,517, 51 Fed. Reg. 30,470. None explicitly affected the issuance of visas to the same extent as the Proclamation. Indeed, most § 1182(f) proclamations were issued in response to a discrete event and were limited to a specific group of individuals associated with that event. Manuel, supra, at 6-10. As a typical example, President Clinton invoked § 1182(f) to suspend entry of Sudanese government and military officials for their failure to comply with a United Nations Security Council Resolution. See, e.g., Proclamation No. 6,958, 61 Fed. Reg. 60,007 (Nov. 22, 1996); see also Exec. Order No. 13,606, 77 Fed. Reg. 24,571 (Apr. 22, 2012) (suspending entry of certain persons associated with human rights abuses by the Iranian and Syrian governments through the use of information technology). Thus, the Proclamation is unprecedented in its combination of a broad sweep impacting millions of people based on their nationality, its imposition of additional criteria for visa issuance, and its arguable conflict with Congressional immigration policy. If there is an example of a § 1182(f) order, past or present, that exceeds the authority of that statute, it would be this one.
But other than the specific nationality restriction of § 1152(a), Plaintiffs have not identified, nor has the Court found, any clear limit on the President’s authority under § 1182(f) that this proclamation has crossed. Nor have Plaintiffs cited any case where a court has struck down a § 1182(f) order as beyond the scope of that provision. In the only Supreme Court
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decision considering such an argument, the Court held that the statute gave “the President ample power to establish a naval blockade” to prevent Haitian migrants from entering the United States. Sale, 509 U.S. at 187. Rather, courts have generally recognized that § 1182(f) provides the President with a “sweeping proclamation power.” Abourezk, 785 F.2d at 1049 n. 2; see Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992) (stating that § 1182(f) provides the President with “broad discretionary authority”); Allende, 845 F.2d at 1117-1118 (stating that § 1182(f) grants the President “vast power to exclude any individual alien or class of aliens whose entry might harm the national interest”); Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980) (referring to § 1182(f) as an “extreme power”).
The text of the statute itself is similarly unhelpful for discerning its limit. As discussed above, § 1182(f) does not impose a time limit on the President, stating that any restriction is “for such period as he shall deem necessary.” 8 U.S.C. § 1182(f). The President can impose restrictions on “any aliens or [] any class of aliens.” Id. The President is not required to find that entry would be detrimental to the nation’s security, only to its “interests,” a term that encompasses any number of reasons. Id.
Nevertheless, Plaintiffs are correct that there must be some limit on § 1182(f) authority. See, e.g., Kent v. Dulles, 357 U.S. 116, 129-30 (1985) (holding that a broad statute authorizing the Secretary of State to issue passports under rules established by the President did not allow the Secretary to deny passports to Communists due to constitutional considerations); Zemel v. Rusk, 381 U.S. 1, 7 (1965) (noting that statutes affecting foreign relations often “leave the exercise of power to [the President’s] unrestricted judgment,” but that does not mean that the President has “totally unrestricted freedom of choice”). For example, Plaintiffs persuasively argue that the use of § 1182(f) to rewrite immigration law, such as to ban all family-based immigrant visas, would
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likely go too far. But that line has yet to be drawn. Where the Proclamation does not clearly run afoul of any identified limit on § 1182(f) authority with regard to nonimmigrant visas, the Court cannot find that Plaintiffs have shown a likelihood of success on the merits of this claim. Because Plaintiffs’ statutory arguments do not support their requested relief in its entirety, the Court must consider their constitutional claims.
B. Establishment Clause Plaintiffs assert that the Proclamation’s ban on citizens from the Designated Countries is the next step in a “clear and direct chain” that began with President Trump’s campaign promise to ban Muslims from entering the United States and continued through EO-1 and EO-2. IRAP Mot. Prelim. Inj. at 24. They argue that the Proclamation therefore violates the Establishment Clause.
1. Legal Standard Defendants first argue that Plaintiffs’ Establishment Clause claim summarily fails upon application of the standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972). Under Mandel, pursuant to Congress’s plenary power over immigration, courts review a claim that a consular officer denied a visa in contravention of constitutional rights only to determine whether there was a “facially legitimate and bona fide reason” for the denial, in which case the court will not “look behind the exercise of that discretion.” Id. at 770 (rejecting a claim that the denial of a visa to Mandel, a Marxist, violated the First Amendment rights of professors who invited him to speak because the Government offered the facially legitimate reason that on a prior visit, Mandel had engaged in activities outside the scope of his visa). Although Mandel involved the denial of an individual visa, the Supreme Court extended the use of the “facially legitimate and bona fide” standard to a categorical immigration determination in Fiallo v. Bell, 430 U.S. 787 (1977), where
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a father alleged that the INA’s grant of an immigration preference to illegitimate children based on their relationship with their mothers, but not their fathers, violated the Equal Protection Clause. Id. at 788-89, 795.
There are persuasive reasons to conclude that the Mandel standard does not apply to Plaintiffs’ Establishment Clause claim. First, there is a more recent line of cases recognizing that courts must not simply defer to the political branches when constitutional rights are at stake. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that in immigration matters, the judicial branch is not required wholly to defer to the political branches because their plenary “power is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (underscoring that even when another branch of government has “plenary authority,” courts may still review whether that branch chose “a constitutionally permissible means of implementing that power”). Here, where the right at issue arises from the Establishment Clause, the Mandel standard is a poor fit because the core harm of a violation of the Establishment Clause, as opposed to the Free Speech Clause or the Equal Protection Clause, is not a limitation on an individual’s right—whether to speak, listen, or be treated equally to another—but the dissemination of a public message that the Government has adopted an official policy of favoring one religion. A “facially legitimate and bona fide” standard designed to evaluate an individual visa determination is therefore not compatible with a fair evaluation of that public message, which necessarily requires some evaluation of the purpose behind the message. See Church of the Lukumi Babalu Aye, 508 U.S. at 532 (stating that an Establishment Clause violation consists of “an official purpose” to disapprove of a religion). Notably, the Supreme Court has not applied the Mandel standard to an Establishment Clause claim.
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Nevertheless, in light of the Fourth Circuit’s application of Mandel to its review of EO-2, see IRAP, 857 F. 3d at 588-91, Plaintiffs do not seriously contest, and this Court accepts, the applicability of Mandel. The Court then looks to the concurring opinion of Justice Kennedy in Kerry v. Din, 135 S. Ct. 2128 (2015), to understand the distinction between “facially legitimate” and “bona fide.” See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”) (citation omitted). An action is “facially legitimate” if there is a valid reason for it on the face of the action. Din, 135 S. Ct. at 2140-41 (Kennedy, J. concurring). An action is “bona fide” if there has been no “affirmative showing of bad faith” by the decisionmaker. Id. at 2141. Based on Din, this Court concludes that if there is a particularized showing of bad faith, a court should then “look behind” the action to evaluate its justification. Id. at 2040-41; see also IRAP, 857 F.3d at 590-91.
Here, the Proclamation states that the President, pursuant to § 1182(f) and § 1185(a), is suspending entry into the United States of nationals from the Designated Countries “to protect the security and interests of the United States and its people.” Procl. pmbl. This national security interest is a facially legitimate reason for the actions set forth in the Proclamation, to the extent authorized by those statutes. See Din, 135 S. Ct. at 2140 (Kennedy, J. concurring).
Plaintiffs, however, assert that the Proclamation’s proffered national security rationale is not the true motivation behind the restrictions, but is instead a pretext for an anti-Muslim bias. In support of their assertion of bad faith, Plaintiffs, as part of their challenge to EO-2, previously offered President Trump’s statements during his presidential campaign calling for a “Muslim ban”; his statements that he would fulfill his campaign promise of a Muslim ban by focusing on
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territories rather than religion; EO-1, adopted without agency consultation, which targeted only majority-Muslim countries and contained preferences for religious minorities within those countries; and statements of President Trump and his advisors that EO-2 had the same policy goals as EO-1. Plaintiffs also pointed to the continued focus in EO-2 on countries with majorityMuslim populations, and what they asserted was a lack of correlation between the stated national security aims of EO-2 and the mechanisms outlined to achieve it. Based on these facts, this Court concluded that the primary purpose for EO-2 was to effect the equivalent of a Muslim ban. IRAP, 241 F. Supp. 3d at 560, 562-63. The Court now reaffirms that finding for purposes of the present analysis.
In their challenge to the Proclamation, Plaintiffs link it to this history of bad faith by noting that the Proclamation is the specific result of the President’s directive in EO-2 that agencies develop a list of countries to be subject to a travel ban. They have supplemented the previous factual record with statements by President Trump since the injunctions against EO-2 were entered urging a return to and a toughening of the travel ban. They again note what they see as the misalignment between the stated national security goals of the ban and the means implemented to achieve them. They also assert that the Proclamation continues disproportionately to affect Muslims, despite the inclusion of two non-Muslim majority nations on the list of Designated Countries. This combined record provides facts that plausibly allege with sufficient particularity an affirmative showing of bad faith in the stated rationale for the Proclamation. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring).
Having found that Plaintiffs have plausibly alleged that the Government’s stated, facially legitimate, reason for the Proclamation is not bona fide, this Court “look[s] behind” that stated reason. See id. at 2040-41. The Court thus turns to a traditional constitutional analysis, in this
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case by applying the traditional tests for evaluating an Establishment Clause claim. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41; see also IRAP, 857 F. 3d at 590-91.
The First Amendment prohibits any “law respecting an establishment of religion,” U.S. Const. amend. I, and “mandates governmental neutrality between religion and religion, and between religion and nonreligion,” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a government action does not differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), to evaluate an Establishment Clause challenge. See Hernandez v. C.I.R., 490 U.S. 680, 695 (1989). Under Lemon, to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’” Id. at 612-613 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
As the first prong of the Lemon test makes clear, in Establishment Clause cases, “purpose matters.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 n.14 (2005). Thus the purpose test is not satisfied by the identification of any secular purpose. McCreary, 545 U.S. at 865 n.13. Such a rule “would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action.” Id. (“[A]n approach that credits any valid purpose . . . has not been the way the Court has approached government action that implicates establishment.” (emphasis added)). Although governmental statements of purpose generally receive deference, an identified secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864. Further, if a religious purpose for the government action is the predominant or primary purpose, and the secular purpose is
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“secondary,” the purpose test has not been satisfied. Id. at 860, 862-65; see also Edwards, 482 U.S. at 594 (finding a violation of the Establishment Clause where the “primary purpose” of the challenged act was “to endorse a particular religious doctrine”).
An assessment of the purpose of an action is a “common” task for courts. McCreary, 545 U.S. at 861. An “understanding of official objective” can emerge from “readily discoverable fact” without “any judicial psychoanalysis” of the decisionmaker. Id. at 862. In determining purpose, a court acts as an “objective observer” who considers “the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” McCreary, 545 U.S. at 862 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). Because “the world is not made brand new every morning,” McCreary, 545 U.S. at 866 (quoting Santa Fe, 530 U.S. at 315), the Court must also consider the “historical context” of a challenged action and the “specific sequence of events” leading up to it. Edwards, 482 U.S. at 594-95. Such evidence is “perfectly probative” and considering it is a matter of “common sense,” because when determining purpose, courts are “forbid[den] . . . ‘to turn a blind eye to the context in which [the] policy arose.’” McCreary, 545 U.S. at 866 (quoting Santa Fe, 530 U.S. at 315).
2. Historical Context This Court previously applied the Lemon test to EO-2 and found that it likely failed the purpose prong because there was substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. IRAP, 241 F. Supp. 3d at 560, 562-63. In making this factual determination, the Court relied largely on a record of public statements made by President Trump and his advisors before his election, before the issuance of EO-1, and after the decision to issue EO-2. Id. at 558-59, 562, 564. See Green v. Haskell Cty.
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Bd. of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009) (considering quotations from county commissioners that appeared in news reports in finding that a Ten Commandments display violated the Establishment Clause); Glassroth v. Moore, 335 F.3d 1282, 1282, 1284-85, 1297 (11th Cir. 2003) (finding an Establishment Clause violation based on a record that included the state chief justice’s campaign materials, including billboards and television commercials, proclaiming him to be the “Ten Commandments Judge”).
That record revealed that on December 7, 2015, while still a Republican primary candidate, Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” J.R. 85. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R. 245. After becoming the Republican presidential nominee, Trump clarified his plans for a Muslim ban. In a July 24, 2016 interview on Meet the Press, Trump asserted that immigration should be immediately suspended “from any nation that has been compromised by terrorism.” J.R. 219. When questioned whether his new formulation was a “rollback” of his call for a “Muslim ban,” he described it as an “expansion” and explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” J.R. 220.
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Within a week of taking office, President Trump issued EO-1. Upon signing it, President Trump remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. The next day, Mayor Giuliani asserted on Fox News that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani explained that, after consulting with others, he proposed that the action be “focused on, instead of religion . . . the areas of the world that create danger for us,” specifically “places where there are [sic] substantial evidence that people are sending terrorists into our country.” J.R. 247-48.
EO-1 mirrored this rhetoric. It suspended for 90 days the immigrant and nonimmigrant entry into the United States of aliens from Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen, all countries where the vast majority of the population is Muslim. The stated purpose of this suspension was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” EO-1 pmbl. EO-1 cautioned that this threat required the United States to be “vigilant during the visa-issuance process,” a process that “plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.” EO1 § 1. However, EO-1 contained no facts tying the seven banned countries to any particular terror threats or to any visa-issuance failures. EO-1 also expressly drew distinctions based on religion, requiring that refugee claims on the basis of religious persecution be prioritized for individuals who were members of a minority religion in their country of nationality.
EO-1 was issued without traditional interagency consultation. Considering this abbreviated process, the similarity between the provisions of EO-1 and the public statements about the form the promised Muslim ban would take, the express references to religion within its text, and the lack of any articulated connection between the scope of the ban and particular
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national security threats, this Court concluded, in resolving the motion for a preliminary injunction against EO-2, that there was a “convincing case” that the purpose of EO-1 was “to accomplish, as nearly as possible, President Trump’s promised Muslim ban” through a policy of restricting entry of nationals of predominantly Muslim countries deemed to be dangerous territory. IRAP, 241 F. Supp. 3d at 558-59. This Court reaffirms this finding for purposes of the present analysis.
That conclusion echoed the determination of the United States District Court for the Eastern District of Virginia, which had enjoined EO-1 on Establishment Clause grounds. Aziz, 234 F. Supp.3d at 730, 737-38 (quoting from a July 17, 2016 interview during which thencandidate Trump, upon hearing a tweet stating “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” responded “So you call it territories. OK? We’re gonna do territories.”). Similarly, in reviewing a TRO halting EO-1, the Ninth Circuit opined that an Establishment Clause claim as to EO-1 raised “serious allegations” and presented “significant constitutional questions.” Washington, 847 F.3d at 1168.
EO-2 followed only six weeks after EO-1. EO-2 again instituted a 90-day suspension of entry from Designated Countries. However, EO-2 removed Iraq from the list of Designated Countries, which was otherwise the same, exempted certain categories of individuals from the ban, and delineated other categories of individuals who might be eligible for a case-by-case waiver. It also removed the preference for refugees from religious minorities and contained no express mention of religion. EO-2 contained a more fulsome factual predicate for its stated national security purpose, asserting that there is a heightened risk that individuals from the Designated Countries will be “terrorist operatives or sympathizers” because each Designated Country is “a state sponsor of terrorism, has been significantly compromised by terrorist
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organizations, or contains active conflict zones,” such that their governments will therefore be less willing or able to “share or validate important information about individuals seeking to travel to the United States.” EO-2 § 1(d).
EO-2 required that the Secretary of Homeland Security, in consultation with the Secretary of State and the DNI, conduct a “worldwide review to identify whether, and if so what, additional information” would be needed from each foreign country to adjudicate a visa application and determine that the applicant is not a security threat. EO-2 § 2(a). A report on that review was to be submitted 20 days after the effective date of EO-2. Then, the Secretary of State was to begin a 50-day process of requesting that foreign governments bring their practices into compliance with any of the report’s recommendations. After that period, the Secretary of Homeland Security, after consultation with the Secretary of State and the DNI, was to “submit to the President of list of countries recommended for inclusion in a Presidential proclamation that would prohibit entry of appropriate categories of foreign nationals of countries that have not provided the information requested.” EO-2 § 2(e). This review and recommendation plan (collectively, the “DHS Review”) was largely unchanged from a comparable review process contained in EO-1.
In public statements, the Trump Administration repeatedly emphasized that EO-2 was, in substance, the same as EO-1. On February 16, 2017, before EO-2 was issued, Stephen Miller, Senior Policy Advisor to the President, characterized the changes made as “mostly minor technical differences” and asserted that the “basic policies are still going to be in effect.” J.R. 319. When EO-2 was signed on March 6, 2017, White House Press Secretary Sean Spicer emphasized that “[t]he principles of the [second] executive order remain the same” as those of
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EO-1. J.R. 118. EO-2 itself explicitly stated that changes from EO-1, particularly the addition of exemption and waiver categories, were made to address “judicial concerns.” EO-2 § 1(i).
Considering EO-2 in this context, this Court concluded that despite the modifications from EO-1 and the removal of any reference to religion, the history of public statements “continued to provide a convincing case that the purpose of EO-2 remains the realization of the long-envisioned Muslim ban.” IRAP, 241 F. Supp. 3d at 559. In so finding, the Court determined that the core policy outcome of a ban on entry of nationals from the Designated Countries remained intact, that EO-2 continued to have the same practical mechanics of a Muslim ban by another name that President Trump had so publicly described, and that the national security rationale, under the circumstances, represented at most a secondary purpose for the travel ban. Id. at 559-60, 562-63. This Court accordingly found that the Plaintiffs were likely to succeed on their claim that EO-2 violated the Establishment Clause. Id. at 560, 564; see also IRAP, 857 F.3d at 601. The Court reaffirms this finding for purposes of the present analysis.
It is against this backdrop that the Court must now assess the likelihood of success of Plaintiffs’ claim that the Proclamation violates the Establishment Clause. Because “reasonable observers have reasonable memories,” past Establishment Clause violations are relevant to the assessment of present government actions. McCreary, 545 U.S. at 866, 874. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000) (rejecting the argument, in a case involving successive school-prayer policies, that adoption of a new, facially neutral school-prayer policy “insulates the continuation of such prayers from constitutional scrutiny,” because any such inquiry “must include an examination of the circumstances surrounding its enactment”). When faced with allegations of a successive Establishment Clause violation, a court must thus not lapse
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into the role of “an absentminded objective observer,” but must instead remain “familiar with the history of the government’s action and competent to learn what history has to show.” McCreary, 545 U.S. at 866. Here, where EO-1 and EO-2 were each likely to violate the Establishment Clause, and the third iteration, the Proclamation, was issued close on their heels—within nine and six months, respectively—it is “common sense” that the Proclamation stands in their shadow. McCreary, 545 U.S. at 855, 869-72, 874 (evaluating the purpose of a third proposed display of the Ten Commandments in light of two prior proposals made within the course of a year).
However, past actions do not “forever taint” present ones. McCreary, 545 U.S. at 874. While courts should reject an “implausible claim that governmental purpose has changed,” they should also “take account of genuine changes in constitutionally significant conditions.” Id. The Supreme Court has not articulated what kind of changes are necessary to obviate the taint of a prior Establishment Clause violation. On this point, Felix v. City of Bloomfield, 841 F.3d 848 (10th Cir. 2016), cited by Defendants, is instructive. In Felix, the United States Court of Appeals for the Tenth Circuit stated that “it is possible that a government may begin with an impermissible purpose, or create an unconstitutional effect, but later take affirmative actions to neutralize” the Establishment Clause violation. Id. at 863. In assessing “whether curative effects are sufficient to overcome an objective observer’s impression” of an impermissible Establishment Clause violation, governmental curative actions would have “not only to persuasively present a primary nonreligious effect, but also to disassociate the [government action] from its previous religious effect.” Id. Specifically, the governmental cure should be (1) “purposeful,” (2) “public,” and (3) “at least as persuasive” as the initial Establishment Clause violation. Id.
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3. The Proclamation The Government argues that the Proclamation does not violate the Establishment Clause because unlike EO-2, it is based on a worldwide review by the Acting Secretary of Homeland Security of information-sharing practices and other factors relevant to the visa issuance process. A comparison of the two orders reveals certain changes that support this argument. First, the Proclamation describes the review process conducted in advance of the Proclamation’s issuance, which included consideration of baseline criteria for assessing available information relevant to the visa issuance process, an assessment of each country against those factors, the consultation with foreign governments to increase compliance, and recommendations on restrictions for countries whose compliance remains inadequate. Procl. §§ 1(e), (f). Second, the Proclamation also alters the list of Designated Countries. In EO-1 and EO-2, all the banned countries were majority-Muslim; the Proclamation’s Designated Countries include two non-majority Muslim countries: North Korea and Venezuela. Like EO-2, the Proclamation includes certain exceptions and authorizes case-by-case waivers, but its restrictions are more finely tuned, with distinctions made for most of the Designated Countries as to particular kinds of visas subject to suspension. Defendants also emphasize that the Proclamation makes no express distinctions based on religion. As with EO-2, the fact that, within the four corners of the document, there is no explicit distinction among countries based on religion does not end the inquiry. Establishment Clause violations can arise from facially neutral government action. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994); cf. Church of the Lukumi Babalu Aye, 508 U.S. at 534, 542 (holding that a facially neutral city ordinance prohibiting animal sacrifice and intended to target the Santeria faith violated the Free Exercise Clause because “the Free
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Exercise Clause, like the Establishment Clause, extends beyond facial discrimination” and action targeting religion “cannot be shielded by mere compliance with the requirement of facial neutrality”). As in Kiryas Joel, where a facially neutral delegation of civic power to “qualified voters” of a village predominantly comprised of followers of Satmas Hasidism was deemed to be a “purposeful and forbidden” violation of the Establishment Clause, a simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation. Kiryas Joel, 512 U.S. at 699-702.
Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people, only a fraction of one percent of all those affected by the Proclamation. In short, the inclusion of Venezuela and North Korea in the Proclamation has little practical consequence. The Court must therefore still assess whether, as has occurred in other Establishment Clause cases, the insertion of these countries was “a litigating position” rather than an earnest effort to “cast off” the prior “unmistakable” objective. McCreary, 545 U.S. at 871-72 (finding that the addition of secular texts to a Ten Commandments display did not remedy a prior Establishment Clause violation).
As with EO-2, the Court must consider not whether the Proclamation has stated a nonreligious purpose for the travel ban, but whether that purpose is, in fact, the primary purpose for the travel ban, rather than a purpose secondary to the religious animus that the Court has found, and continues to find, to be the primary purpose for the EO-2. McCreary, 545 U.S. at 860, 862-
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65. The Court also considers whether the governmental curative action since EO-2 was purposeful, public, and “at least as persuasive as the initial endorsement of religion.” Felix, 841 F.3d at 863. At the outset of this analysis, the Court notes that, on its face, the Proclamation is not entirely independent of the President’s history of public advocacy for a Muslim ban. In a July 24, 2016 interview on Meet the Press, then-candidate Trump, when asked about his proposed “Muslim ban,” responded by stating that “[w]e must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.” J.R. 219-20. When asked if this formulation represented a “rollback” of the Muslim ban, President Trump answered that it was an “expansion,” noting that he was now “looking at territories” because “[p]eople were so upset when I used the word Muslim.” J.R. 220. President Trump’s characterization of the Muslim ban on that occasion, as a suspension of immigration until vetting mechanisms have been implemented, appears to mirror the contours of the Proclamation. Likewise, the permanent travel ban imposed by the Proclamation was forecast at the time of EO-1 and EO-2. On January 30, 2017, three days after issuing the 90-day ban under EO-1, ostensibly for the purpose of conducting an internal review of vetting procedures, President Trump seemed to predict the results of that review, stating, “we’re going to have a very, very strict ban.” J.R. 123. Shortly after the issuance of EO-2, White House officials, noting that EO-2’s provisions were temporary, stated that the ban might be extended past 90 days and to additional countries. J.R. 116.
Upon consideration of the text of EO-1, EO-2, and the Proclamation, there are substantial reasons to question whether the asserted national security purpose has now indeed become the primary purpose. First, the underlying architecture of the prior Executive Orders and the Proclamation is fundamentally the same. Each of these executive actions bans the issuance of
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immigrant and nonimmigrant visas on the basis of nationality to multiple majority-Muslim countries on the basis of concerns about terrorism. The Proclamation does not abandon this fundamental approach, but rather doubles down on it, because rather than imposing a temporary, 90-day travel ban, the Proclamation establishes an indefinite travel ban, which is subject to periodic review, but which would become permanent in the absence of additional action.
Although the Government frames the Proclamation review process as an independent action that has cured any taint from EO-2, a close read of EO-1 and EO-2 reveals that the outcome of the DHS Review was at least partially pre-ordained. It is undisputed that the DHS Review was conducted pursuant to the President’s directive, contained in both EO-1 and EO-2, mandating a review of information-sharing practices, but that directive also telegraphed the expected recommendations. Specifically, EO-2 instructed that the Secretary of Homeland Security “shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals.” EO-2 § 2(e), see EO-1 § 2(e) (omitting the phrase “appropriate categories of”). This language does not permit the Secretary to recommend that no nationality-based travel ban is necessary. The language of EO-2 thus indicates that the President had decided, even before the study had been conducted, that regardless of the results, some nationals would be subject to a travel ban. Where EO-2 contemplated and planned for the very type of travel ban imposed by the Proclamation, the Proclamation cannot be framed as an independent product of bureaucratic operation.
Moreover, a comparison of EO-2 with the Proclamation reveals that many of the criteria considered in the DHS Review, and used to justify the ban on specific countries in the Proclamation, were substantially similar to those used to select the list of countries banned by
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EO-2. EO-2 explained its choice of countries by noting that some or all were “a state sponsor of terrorism,” had “been significantly compromised by terrorist organizations,” and made it difficult for the United States to deport their nationals because they “typically delay issuing, or refuse to issue, travel documents.” EO-2 § 1(d). These factors largely track the “National security and public-safety risk assessment” factors considered in the DHS Review, which include whether a country is a “known or potential terrorist safe haven” and “fails to receive its nationals subject to final orders of removal from the United States.” Proclamation § 1(c)(iii). Likewise, EO-2 ostensibly selected banned countries in part because country circumstances diminished “the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States,” a consideration that encompasses many of the “Identity-management information” and “National security and public-safety information” criteria used as the baseline for the DHS Report. Id. § 1(c)(i)-(ii).
Many of EO-2’s specific findings about banned countries are also substantially the same as those described in the Proclamation. For example, EO-2 noted as one factor in banning Iran that it “regularly fails to cooperate with the United States Government in identifying security risks,” EO-2 § 2(e)(i), while the Proclamation concluded that “Iran does not cooperate with the United States in counterterrorism efforts,” Procl. § 2(b) (i). EO-2 justified the ban on Somalia in part because “most countries do not recognize Somali identity documents,” EO-2 § 2(e)(iii), one of the same factors used to justified the Somali ban in the Proclamation, see Procl. § 2(h)(i). In both orders, the ban on Syria is justified in part by the fact that Syria is a state sponsor of terrorism and does not cooperate with the United States in addressing security or terrorism risks. This substantial overlap between EO-2 and the Proclamation in terms of the criteria considered and applied in identifying countries to ban undermines the characterization of the Proclamation’s
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determination to impose a travel ban as the product of an independent evaluation unconnected to the earlier, tainted travel bans, and further suggests that many of the results may have been preordained. Where the President ordered the submission of a list of countries to be banned, and the criteria used to arrive at that list substantially aligned with those he applied to generate the list of banned countries in the tainted EO-2, it is not surprising that agency officials acting in good faith could and did propose a similar list of countries to be banned in the Proclamation.
Some of the specific determinations made in the Proclamation, by deviating from the general findings of the DHS Review, also undermine the argument that the Designated Countries were selected by an independent process completely untethered to the President’s earlier statements advocating for a Muslim ban. For example, although the Proclamation’s travel ban is purportedly designed to combat deficient information-sharing practices, Somalia, which was found to have adequate information-sharing practices, is nevertheless on the list of Designated Countries and is subject to a ban on all immigrants from that nation. Somalia is a majorityMuslim country that was included in the list of Designated Countries in both EO-1 and EO-2. Venezuela, meanwhile, a non-majority Muslim nation, was determined to have inadequate information-sharing practices, to have at least one national security risk factor, and to not reliably receive its nationals slated for deportation. Despite these deficiencies, only officials of the Venezuelan government are barred from entry. Thus, by its own terms, the Proclamation did not simply rely on the results of an objective information-sharing review but instead made certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations, and a greater alignment with the travel ban of EO-2, than would otherwise flow from the objective factors considered in the review. Moreover, the exception given to Venezuela serves to
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reveal that information-sharing deficiencies do not necessarily warrant a broad, nationality-based ban.
That fact brings into relief a continued lack in the Proclamation, as in EO-1 and EO-2, of facts establishing that a broad nationality-based travel ban is justified by possible failures in the visa-issuance process and the terrorist and public safety threats that the Proclamation’s ban is meant to thwart. While the President’s findings may meet the low bar of “detrimental interest,” 8 U.S.C.§ 1182(f); see supra part II.A.2, they do not explain why the broad travel ban is necessary in a way that convincingly demonstrates that its primary purpose is now unrelated to religious animus. As discussed above, a nationality-based travel ban against eight nations consisting of over 150 million people is unprecedented. Since the enactment of § 1182(f), only two of the 42 invocations of that authority have sought to bar entry based on nationality, and in those cases only against a single nation and in response to a specific diplomatic dispute with that nation. See Exec. Order No. 12,172, 44 Fed. Reg. 67947; Exec. Order No. 12,206, 45 Fed. Reg. 24,101; Proclamation No. 5,517, 51 Fed. Reg. 30,470. Such a ban was not even imposed after the September 11, 2001 attacks. Furthermore, while EO-1 and EO-2 sought to justify the travel ban based on prior acts of terrorism involving nationals of the Designated Countries, Defendants offer no evidence, even in the form of classified information submitted to the Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities; rather, the Proclamation relies primarily on the lack of information sharing from the Designated Countries. Numerous distinguished former national security officials have attested to the unique nature of this travel ban and the lack of a discernible national security rationale for it, including any rationale that would flow from information-sharing deficiencies. Notably, in the context of the VWP, Congress as recently as 2015 examined this same issue and responded with legislation that
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falls well short of any kind of nationality-based travel ban. See supra part III.A.3. Thus, the Proclamation fails adequately to explain not the need to respond to information-sharing deficiencies, but the need for the specific response of an unprecedented, sweeping nationalitybased travel ban against majority-Muslim nations.
The Court does not reference the record evidence showing the apparent disconnect between the identified problem and the broad, nationality-based travel ban to evaluate the merits of the travel ban as a national security matter. See Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (stating that generally, courts should afford deference to national security and foreign policy judgments of the Executive Branch). Nor does it question that informationsharing deficiencies can have a national security impact and should be addressed. Rather, it considers this context only to assess whether the Proclamation persuasively establishes that the primary purpose of the travel ban is no longer religious animus. Based on the facts that the Proclamation’s ban generally resembles President Trump’s earlier description of the Muslim ban, EO-2 dictated the Proclamation’s outcome of a recommended list of nations to be subjected to a travel ban, the criteria used to select countries were highly correlated with those used to select the countries for EO-2, the terms of the Proclamation’s travel ban skew against Muslim nations as compared to the objective measures applied in the DHS Review, and the proposed response has not been adequately explained as a necessary one to the identified problem, the Court cannot conclude that the Proclamation sufficiently offers a “purposeful” curative action that establishes that the taint of EO-2 no longer underlies the travel ban. See Felix, 841 F. 3d at 863.
To the extent that the Government might have provided additional evidence to establish that national security is now the primary purpose for the travel ban, it has not done so. It has not offered classified information such as the September 15, 2017 DHS Report which, even though
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not “public,” could have been submitted to the Court to explain the shift in purpose. Of course, even if such evidence was forthcoming, its value in obviating the taint of the earlier Executive Orders would be limited. As noted, in Establishment Clause cases, it is the opinion of the reasonable observer that controls. McCreary, 545 U.S. at 866 (quoting Santa Fe, 530 U.S. at 315). Purposes that can be discerned only if one “burrow[s] into a difficult-to-access” record do little to “assure [the public] that the government is not endorsing a religious view.” Felix, 841 F. 3d at 863.
Beyond the Proclamation itself, Defendants have offered only one additional “public” statement to bolster the case that the Proclamation is now cured of religious animus: a speech by the President delivered in Saudi Arabia in May 2017 in which he made various positive statements about Islam. See Felix, 841 F. 3d at 863. Such a statement, however, did not in any way repudiate the President’s prior intention to impose a Muslim ban. Particularly where, in August 2017, President Trump tweeted a statement that a method hostile to Islam—shooting Muslims with bullets dipped in pig’s blood—should be used to deter future terrorism, there is no record of public statements showing any change in the President’s intentions relating to a Muslim ban.
Rather, the only other available public statements not only fail to advance, but instead undermine, the position that the primary purpose of the travel ban now derives from the need to address information-sharing deficiencies. Even while interagency consultation regarding the travel ban took place behind closed doors, another conversation continued in the public eye. The day after EO-2 was enjoined, President Trump proclaimed at a rally that it had been a “watered down version of the first one” that had been “tailor[ed]” by lawyers to respond to legal challenges. J.R. 652-53. He suggested instead that “we ought to go back to the first one and go
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all the way, which is what I wanted to do in the first place.” J.R. 653. In a June 3, 2017 tweet, days after the Fourth Circuit’s opinion upholding this Court’s injunction against EO-2, President Trump declared in a tweet that “We need the Travel Ban as an extra level of safety!” J.R. 662. On June 5, 2017, President Trump tweeted that “[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court],” and that “the Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!” J.R. 664. Then, on September 15, 2017, the same day that the Acting Secretary of Homeland Security submitted her report, President Trump again called for an expansion of the travel ban, tweeting that “the travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!” J.R. 705.
Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” J.R. 667— announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. Against the backdrop of two prior Executive Orders that this Court and others have deemed likely violated the Establishment Clause, see, e.g., Aziz, 234 F. Supp.3d at 739 and Hawaii, 241 F. Supp. 3d at 1137-38, this Court is obligated to pay attention to such statements.
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See McCreary, 545 U.S. at 866 (cautioning courts that they cannot become “an absentminded objective observer,” but must instead remain “familiar with the history of the government’s action and competent to learn what history has to show”). The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation. McCreary, 545 U.S. at 874. Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, Felix, 841 F.3d at 863, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated,” McCreary, 545 U.S. at 871-72. Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones. Id. at 872.
The “initial” announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms. Under Felix, the Government’s cure must be made “as persuasively as the initial” violation. Felix, 841 F.3d at 863. Here, the Court concludes that where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban. See McCreary, 545 U.S. at 872 (finding that a third version of a Ten Commandments display continued to have a primarily religious purpose); Felix, 841 F. 3d at 863. The Court therefore finds that Plaintiffs have demonstrated
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that they are likely to succeed on the merits of their Establishment Clause claim. Having reached this conclusion, the Court need not address Plaintiffs’ likelihood of success on their Equal Protection Clause claim. IV. Irreparable Harm
Having concluded that Plaintiffs have established a likelihood of success on the merits on their § 1152(a) and Establishment Clause claims, the Court turns to whether they have shown a likelihood of irreparable harm. The Supreme Court has held that “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (finding irreparable harm upon a violation of the freedom of association). The Fourth Circuit has applied this holding to cases involving the freedom of speech and expression. E.g., Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 190, 191-92 (4th Cir. 2013); Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011). Although the Fourth Circuit has not held that a violation of the Establishment Clause likewise necessarily results in irreparable harm, other circuits have. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006); Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986); Am. Civil Liberties Union of Ill. v. City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986) (finding irreparable harm in an Establishment Clause case and stating that the “harm is irreparable as well as substantial because an erosion of religious liberties cannot be deterred by awarding damages to the victims of such erosion”).
Here, as in Elrod, “First Amendment interests were either threatened or in fact being impaired at the time relief was sought.” 427 U.S. at 373. “[W]hen an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place.”
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Chaplaincy of Full Gospel Churches, 454 F.3d at 303. The Court accordingly finds that Plaintiffs have established a likelihood of irreparable harm arising from their Establishment Clause claim at the time the Proclamation takes effect.
The Court also finds that Plaintiffs with a family member seeking an immigrant visa have established a likelihood of irreparable harm as a result of the Proclamation’s violation of the INA. Irreparable harm occurs when the threatened injury impairs a court’s ability to grant an effective remedy, such as a harm that cannot be compensated by money damages at a later trial. See Hawaii, 859 F.3d at 782; see also 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed. 1998). The injury must be likely, not merely speculative, in order to be considered irreparable. Wright & Miller, supra, § 2948.1. Without an injunction, Plaintiffs will be subjected to imminent and irreparable harm as a result of the prolonged separation from their family members caused by the Proclamation. Hawaii, 859 F.3d at 782 (considering separation from family members in finding a likelihood of irreparable harm); see also IRAP, 857 F.3d at 611-12 (Keenan, J., concurring). The absence of a family member cannot be cured through a later payment of money damages, and is therefore irreparable. For the same reason that Plaintiffs’ claims are ripe, the injury is not speculative, despite the Proclamation’s waiver provisions. See supra part I.B. Thus, Plaintiffs have shown irreparable harm as a result of the Proclamation. V. Balance of the Equities
In balancing the equities, the Court considers the significant, irreparable harm Plaintiffs would face both from the prolonged separation from family members and the Establishment Clause violation. While Plaintiffs would likely face irreparable harm in the absence of an injunction and would plainly benefit from an injunction, Defendants are not directly harmed by a
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preliminary injunction preventing them from enforcing a Proclamation likely to be found unconstitutional. See Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); Aziz, 234 F. Supp.3d at 738.
At the same time, the Supreme Court has stated that “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). Although the Proclamation seeks to further information-sharing and diplomatic purposes, Defendants have not shown that national security cannot be maintained without an unprecedented eight-country travel ban. An injunction would not grant entry to any individual foreign national, but would only preclude the use of a blanket ban. Even with an injunction, visa applicants from the Designated Countries would be screened through the standard, individualized vetting process under which the burden is on individual applicants to prove that they are not inadmissible to the United States. 8 U.S.C. § 1361. An injunction would not shift or lessen that burden or prevent the denial of any particular visa application. Thus, as a general matter, the balance of the equities favors the issuance of an injunction.
However, in partially staying the injunction of EO-2, the Supreme Court noted that the balance of equities varies depending on a foreign national’s strength of connection to the United States. See Trump, 137 S. Ct. at 2088. For those individuals who lack “a credible claim of a bona fide relationship with a person or entity in the United States,” the equities shift such that Defendants’ interest in national security prevails over any harms resulting from the Proclamation’s likely Establishment Clause or INA violations. See id. Accordingly, this factor supports an injunction extending only to individuals with a bona fide relationship with an individual or entity in the United States, as discussed below.
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VI. Public Interest Preventing an Establishment Clause violation provides a significant public benefit. The
Supreme Court has recognized the “fundamental place held by the Establishment Clause in our constitutional scheme.” Wallace v. Jaffree, 472 U.S. 38, 60 (1985). The Founders “brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion” because they understood that “governmentally established religions and religious persecution go hand in hand.” Engel v. Vitale, 370 U.S. 421, 432-33 (1962). When the government chooses sides among religions, the “inevitable result” is “hatred, disrespect, and even contempt” from those who adhere to different beliefs. See id. at 431. Thus, to avoid sowing seeds of division in our nation, upholding this fundamental constitutional principle at the core of our Nation’s identity serves a significant public interest.
The Court also finds that granting an injunction on the Proclamation’s violation of the INA advances the public interest. Section 1152(a) represents a judgment by Congress that our immigration policy should not discriminate on the basis of nationality. To the extent that this judgment is undermined by the Proclamation, the public interest is furthered by an injunction on those grounds.
Although the Government’s interest in national security is a significant public interest, for the reasons discussed above, see supra part V, those interests are not paramount in this instance. Accordingly, the Court finds that the public interest favors an injunction. VII. Scope of Relief
The Plaintiffs’ Establishment Clause and § 1152(a) arguments focused primarily on the travel ban for citizens of the eight Designated Countries in Section 2 of the Proclamation. The Court will therefore enjoin Section 2 only, subject to the following exceptions.
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As discussed above, because the balance of equities favor Defendants as to visa applicants with no ties to the United States, the injunction is limited to barring enforcement of Section 2 against those individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump, 137 S. Ct. at 2088. For individuals, the injunction covers visa applications by individuals with immediate family members, such as parents, children, or siblings, as well as “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” Id.; Hawaii v. Trump, 871 F.3d 646, 658 (9th Cir. 2017) (clarifying the scope of the injunction against EO-2). For organizations, the connection must be “formal, documented, and formed in the ordinary course” rather than for the purposes of evading the Proclamation. Trump, 137 S. Ct. at 2088. For example, IRAP’s employee or an invited speaker for MESA’s annual meeting or IAAB’s conference would qualify. See id. (including a “lecturer invited to address an American audience” and a “worker who accepted an offer of employment” within the scope of the injunction). A member of MESA or another membership organization who formally joined the organization before the date of the injunction and seeks to enter the United States for organized activities or meetings of the association would also fall within its scope. See id. Pursuant to the Supreme Court’s stay of the Ninth Circuit’s determination that a refugee with a formal sponsorship assurance from a U.S. resettlement agency has a bona fide connection to the United States, the Court concludes that clients of IRAP and HIAS, and those similarly situated, are not covered by the injunction absent a separate bona fide relationship as defined above. See id. at 2088; Hawaii, 871 F.3d at 661-64 (finding that a refugee with a formal sponsorship assurance from a U.S. resettlement agency has a bona fide connection to the United States); Trump v.
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Hawaii, No. 17A275, 2017 WL 3975174 (Sept. 11, 2017) (staying the Ninth Circuit mandate “with respect to refugees covered by a formal assurance”).
The injunction also will not apply to travelers from Venezuela or North Korea because the balance of equities favors Defendants with respect to those two countries. Section 1152(a) provides no basis to support an injunction relating to Venezuela because the Proclamation does not bar immigrants from Venezuela. Given the extremely limited number of visas typically issued to individuals from North Korea, Plaintiffs have neither argued nor shown how any individuals from that nation with a bona fide relationship to a person or entity in the United States will be harmed by the § 1152(a) violation. Likewise, they have not shown how travelers from Venezuela or North Korea would be harmed by the likely Establishment Clause violation. Accordingly, the injunction will not apply to nationals of Venezuela or North Korea.
Finally, in light of the constitutional concerns associated with enjoining the President of the United States, this injunction does not apply to the President and instead applies only to the other Defendants and the federal officials who will actually enforce the Proclamation. See Franklin, 505 U.S. at 800-01.
The injunction will apply nationwide. It is “well established” that a federal district court has “wide discretion to fashion appropriate injunctive relief in a particular case.” Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992); see also Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (holding that the “Constitution vests the District Court with ‘the judicial Power of the United States,’” which “extends across the country” (quoting U.S. Const. art. III § 1)), aff’d by an equally divided court, 136 S. Ct. 2271 (2016). Injunctive relief “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). However, nationwide injunctions
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are appropriate if necessary to afford relief to the prevailing party. See id.; Richmond Tenants Org., Inc., 956 F.3d at 1308-39; Texas, 809 F.3d at 188.
The Court has found that Plaintiffs are likely to succeed on their claims that Section 2 of the Proclamation violates the Establishment Clause and § 1152(a). The Individual and Organizational Plaintiffs are located in different parts of the United States, indicating that nationwide relief may be appropriate. Richmond Tenants Org., Inc., 956 F.3d at 1309 (holding that a nationwide injunction was “appropriately tailored” because the plaintiffs lived in different parts of the country). Moreover, although the Government has argued that relief should be strictly limited to the specific interests of Plaintiffs, an Establishment Clause violation has impacts beyond the personal interests of individual parties. Joyner v. Forsyth Cty., 653 F.3d 341, 355 (4th Cir. 2011) (“[T]hese plaintiffs are not so different from other citizens who may feel in some way marginalized on account of their religious beliefs and who decline to risk the further ostracism that may ensue from bringing their case to court or who simply lack the resources to do so.”); City of St. Charles, 794 F.2d at 275 (stating that a violation of the Establishment Clause causes “harm to society”). Here, nationwide relief is appropriate because this case involves an alleged violation of the Establishment Clause by the federal government manifested in immigration policy with nationwide effect. See Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (affirming a nationwide injunction in a facial challenge to a federal statute and regulations on Establishment Clause grounds).
Nationwide relief is also warranted on the § 1152(a) claim, with respect to applicants for immigrant visas, because under these facts, a “fragmented” approach “would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.” Washington, 847 F.3d at 1166-67. “Congress has instructed that the immigration laws of the United States
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should be enforced vigorously and uniformly, and the Supreme Court has described immigration policy as a comprehensive and unified system." Texas, 80 F.3d at 187-88 (footnotes omitted). Accordingly, Section 2 of the Proclamation, with the exceptions and to the extent described above, will be enjoined on a nationwide basis.
CONCLUSION For the foregoing reasons, Plaintiffs' Motions for a Preliminary Injunction are GRANTED IN PART and DENIED IN PART. The Court will issue a preliminary injunction barring enforcement of Section 2 of the Proclamation, subject to the terms stated in the separate Order.

Date: October 17, 2017

THEODORE D. C United States Distric

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UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.

Civil Action No. TDC-17-0361

IRANIAN ALLIANCES ACROSS BORDERS, UNIVERSITY OF MARYLAND COLLEGE PARK CHAPTER, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. TDC-17-2921

EBLAL ZAKZOK, et al., Plaintiffs, v.
DONALD J. TRUMP, etal., Defendants.

Civil Action No. TDC-17-2969

ORDER For the reasons stated in the accompanying Memorandum Opinion, the Court finds that the Plaintiffs have standing to maintain this civil action and have established that they are likely

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to succeed on the merits, that they are likely to suffer irreparable harm in the absence of injunctive relief, and that the balance of the equities and the public interest favor an injunction.
Accordingly, it is hereby ORDERED that: 1. Plaintiffs' Motions for a Preliminary Injunction, TDC-17-0361 ECF No. 205,
TDC-17-2921 ECF No. 26, TDC-17-2969 ECF No.2, are GRANTED IN PART and DENIED IN PART. 2. The Motions are GRANTED as to Section 2 of Presidential Proclamation 9645 ("Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats"). All Defendants with the exception of the President of the United States; all officers, agents, and employees of the Executive Branch of the United States government; and anyone acting under their authorization or direction, are ENJOINED from enforcing Section 2 of Presidential Proclamation 9645 except with regard to: a. Sections 2(d) and 2(f) of the Proclamation; b. Individuals lacking a credible claim of a bona fide relationship with a
person or entity in the United States, as dermed in the accompanying Memorandum Opinion. 3. This Preliminary Injunction is granted on a nationwide basis and prohibits the enforcement of Section 2 of Presidential Proclamation 9645 in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas, with the above exceptions, pending further orders from this Court.
2

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4. The Motion is DENIED as to the President of the United States and as to all other provisions of Presidential Proclamation 9645.
5. Plaintiffs are not required to pay a security deposit. 6. The Court declines to stay this ruling or hold it in abeyance should an emergency
appeal of this Order be filed.

Date: October 17,2017

THEODORED. CH United States Distri

3

 
 Case 8:17-cv-02921-TDC Document 63 Filed 01/19/18 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION

____________________________________

)

IRANIAN ALLIANCES ACROSS

)

BORDERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-02921-TDC

)

DONALD J. TRUMP, in his official

)

capacity as President of the United

)

States, et al.,

)

)

Defendants.

)

____________________________________)

)

EBLAL ZAKZOK, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02969-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., )

)

Defendants.

)

____________________________________)

DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF PRELIMINARY-INJUNCTION APPEALS

Defendants hereby move for a stay of all district court proceedings in the above-captioned

matters, pending final resolution of the preliminary-injunction appeals before the United States

Court of Appeals for the Fourth Circuit and/or the Supreme Court. This motion is supported by

the accompanying memorandum of law. A proposed order is also attached.

Dated: January 19, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

Case 8:17-cv-02921-TDC Document 63 Filed 01/19/18 Page 2 of 3
HASHIM M. MOOPPAN Deputy Assistant Attorney General
STEPHEN M. SCHENNING Acting United States Attorney
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Daniel Schwei DANIEL SCHWEI (Bar No. 96100) MICHELLE R. BENNETT (Bar No. 806456) KEVIN SNELL JOSEPH C. DUGAN Senior Trial Counsel / Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington DC 20530 Tel: (202) 305-8693 Fax: (202) 616-8470 E-mail: daniel.s.schwei@usdoj.gov

Case 8:17-cv-02921-TDC Document 63 Filed 01/19/18 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that, on January 19, 2018, a copy of the foregoing document and its attachments was served on counsel for plaintiffs in the above-captioned matters via CM/ECF, and was served on counsel for plaintiffs in International Refugee Assistance Project v. Trump, No. 17-cv-361-TDC (D. Md.), via e-mail.
/s/ Daniel Schwei Daniel Schwei Bar No. 96100

Case 8:17-cv-02921-TDC Document 63-1 Filed 01/19/18 Page 1 of 25

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION

____________________________________

)

IRANIAN ALLIANCES ACROSS

)

BORDERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-02921-TDC

)

DONALD J. TRUMP, in his official

)

capacity as President of the United

)

States, et al.,

)

)

Defendants.

)

____________________________________)

)

EBLAL ZAKZOK, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02969-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., )

)

Defendants.

)

____________________________________)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO STAY

Case 8:17-cv-02921-TDC Document 63-1 Filed 01/19/18 Page 2 of 25
TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. Prior Proceedings ................................................................................................................ 2 II. Plaintiffs’ Requests for Discovery ...................................................................................... 4 STANDARD OF REVIEW ............................................................................................................ 6 ARGUMENT .................................................................................................................................. 6 I. The Court Should Stay All Further Proceedings Pending Resolution of Appellate
Proceedings ......................................................................................................................... 7 II. At A Minimum, the Court Should Stay Discovery Given the Heavy Burden It Would
Impose on This Court and the Parties ............................................................................... 12 A. The Forthcoming Appellate Decisions Will Likely Provide Important
Guidance Regarding Discovery ............................................................................ 12 B. Plaintiffs Have Not Justified a Need for Immediate Discovery, and Any
Such Discovery is Likely to Be Heavily Burdensome, Intrusive, and Implicate Privileged Material ............................................................................... 14 III. The Requested Stay Would Be Reasonable in Length, and Would Not Cause Any Prejudice to Plaintiffs........................................................................................................ 21 CONCLUSION............................................................................................................................. 22
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INTRODUCTION Currently pending before the en banc Fourth Circuit Court of Appeals is the Government’s appeal from this Court’s preliminary injunction, prohibiting enforcement of certain sections of Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats, 82 Fed. Reg. 45,161 (Sept. 27, 2017). Notwithstanding this ongoing appeal, plaintiffs in two of the cases pending before this Court seek to move forward with their claims; in particular, they request that the Court “allow[] discovery to begin immediately so that the parties can develop the record for a ruling on the merits.” Iranian Alliances Across Borders (IAAB) v. Trump, No. 17-cv-2921-TDC (D. Md.), ECF No. 58 at 2; see also Zakzok v. Trump, No. 17-cv-2969 (D. Md.), ECF No. 46. But moving forward with merits proceedings at this stage would be highly inefficient and burdensome. If the cases were to move forward, the next step would be for the Government to move to dismiss the complaints. The core legal questions this Court would have to confront in resolving that motion to dismiss, however, are the same legal questions currently at issue before the Fourth Circuit. Indeed, those same legal questions are also now pending before the Supreme Court, which just today granted the Government’s petition for certiorari in Trump v. Hawaii, No. 17-965 (U.S.). Thus, it would be highly inefficient for this Court to move forward with briefing and decision on a motion to dismiss, when many (if not all) of the same legal issues will soon be decided by a binding appellate tribunal. Given that the forthcoming decisions from the appellate courts will provide important guidance on the legal issues in these cases—if not entirely resolve these cases—it makes eminent sense for this Court to stay further district court proceedings pending resolution of the preliminary-injunction appellate proceedings. At a minimum, this Court should not permit plaintiffs to immediately begin discovery. The forthcoming appellate decisions—to the extent they do not dispositively resolve these cases—will
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likely provide significant guidance regarding the appropriate scope of discovery, if any. At present, however, the Government does not believe any discovery is appropriate. Allowing plaintiffs to pursue discovery, therefore, will almost certainly result in significant motions practice before this Court. That is especially true given the burdensome and intrusive nature of the discovery that plaintiffs are likely to seek. At a minimum, then, the Court should not permit discovery to proceed until after the preliminary-injunction appeals are resolved (or at least not until after the Government’s motion to dismiss is fully briefed and decided).
In light of the foregoing, a stay of proceedings is amply warranted based on the inefficiencies and burdens imposed on the parties and the Court if these cases were to move forward. Moreover, the anticipated length of the Government’s requested stay is quite modest— only a few months. During that time, plaintiffs will not suffer any prejudice to their ability to conduct discovery, should it become necessary, at a later date. Accordingly, the proper course here would be for the Court to stay all further district court proceedings pending resolution of the preliminary-injunction appeals.
BACKGROUND I. Prior Proceedings
There are three cases filed in the District of Maryland challenging the Proclamation. The first case, International Refugee Assistance Project (IRAP) v. Trump, No. 17-cv-361-TDC, was filed in February 2017 in response to a prior Executive Order. In October 2017, the IRAP plaintiffs amended their complaint and sought preliminary relief against the Proclamation. After the IRAP preliminary-injunction proceedings had begun, the second and third cases—IAAB and Zakzok— were filed, and the plaintiffs in those cases likewise sought preliminary relief against the Proclamation. See IAAB v. Trump, No. 17-cv-2921-TDC (D. Md. filed October 2, 2017); Zakzok v. Trump, No. 17-cv-2969-TDC (D. Md. filed October 6, 2017).
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On October 17, 2017, this Court entered an Order and Memorandum Opinion in all three cases enjoining certain aspects of the Proclamation with respect to certain individuals. See IRAP, ECF Nos. 219-220; IAAB, ECF Nos. 46-47; Zakzok, ECF Nos. 36-37. On October 20, 2017, Defendants appealed the preliminary injunction in all three cases. See IRAP, ECF No. 223; IAAB, ECF No. 50; Zakzok, ECF No. 40.
The United States Court of Appeals for the Fourth Circuit formally consolidated all three cases, and designated IRAP as the lead case. See Order Consolidating Cases, IRAP v. Trump, No. 17-2231 (4th Cir. Oct. 20, 2017), ECF No. 3. The Fourth Circuit also granted an expedited briefing schedule in the appeals. See Order Setting Schedule, IRAP, No. 17-2231 (4th Cir. Oct. 31, 2017), ECF No. 52. After briefing was completed on that expedited schedule, the en banc Fourth Circuit heard oral argument on December 8, 2017.
In addition to the District of Maryland cases, plaintiffs in several other courts also sought to challenge the Proclamation. See, e.g., Hawaii v. Trump, No. 17-cv-50 (D. Haw.). On October 17, 2017, the court in Hawaii entered a temporary restraining order against certain sections of the Proclamation, and on October 20, 2017, the Court converted its temporary restraining order to a preliminary injunction. See Hawaii, ECF Nos. 387, 390. The Government appealed that preliminary injunction as well. See Hawaii, ECF No. 391.
In both the Fourth Circuit and the Ninth Circuit, the Government moved to stay enforcement of the preliminary injunctions pending the appeals. The Ninth Circuit stayed the injunction in part. See Order Granting Stay in Part, Hawaii v. Trump, No. 17-17168 (9th Cir. Nov. 13, 2017), ECF No. 39. The Government then requested that the Supreme Court stay both the District of Hawaii and the District of Maryland injunctions. See Trump v. Hawaii, No. 17A550; Trump v. IRAP, No. 17A560. On December 4, 2017, the Supreme Court entered identical orders
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staying both injunctions in full. See Trump v. Hawaii, 138 S. Ct. 542 (2017); Trump v. IRAP, 138 S. Ct. 542 (2017). The Supreme Court noted in each Order that, because each court of appeals had decided “to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.” Hawaii, 138 S. Ct. at 542; IRAP, 138 S. Ct. at 542.
On December 22, 2017, the Ninth Circuit affirmed the District of Hawaii’s injunction in part. See Hawaii v. Trump, No. 17-17168, 2017 WL 6554184 (9th Cir. Dec. 22, 2017). Following that decision, the Government filed a petition for certiorari on January 5, 2018. See Trump v. Hawaii, No. 17-965 (U.S.). Earlier today, on January 19, 2018, the Supreme Court granted the Government’s petition for certiorari and directed the parties to brief and argue the following four questions:
1. Whether respondents’ challenge to the President’s suspension of entry of aliens abroad is justiciable.
2. Whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad.
3. Whether Proclamation No. 9645 violates the Establishment Clause. 4. Whether the global injunction is impermissibly overbroad. See Trump v. Hawaii, No. 17-965, 583 U.S. ___ (U.S. Jan. 19, 2018). The Fourth Circuit has not yet ruled in the IRAP consolidated appeals. II. Plaintiffs’ Requests for Discovery Notwithstanding these ongoing appellate proceedings, in district court the IAAB and Zakzok plaintiffs filed pre-motion letters requesting that they be permitted to proceed with discovery. Specifically, the IAAB plaintiffs request entry of a scheduling order to allow the parties to “fully develop the record so that they may file summary judgment motions or go to trial shortly after the interlocutory appeal is resolved.” IAAB, ECF No. 58 at 3. The IAAB plaintiffs proposed a discovery schedule pursuant to which discovery would occur over a five-month period
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(December 2017 through April 2018). See id. The IAAB plaintiffs did not specify any topics on which they sought discovery.
The Zakzok plaintiffs subsequently filed their own pre-motion letter, stating that they “join the plaintiffs in [IAAB] in their request” for entry of a scheduling order “to allow the parties . . . to begin discovery so that this case can proceed efficiently after the interlocutory appeal is resolved.” Zakzok, ECF No. 46 at 1. The Zakzok plaintiffs stated that they “agree that a schedule consistent with the one set forth in the IAAB Letter is reasonable and would allow the parties to be ready to file summary judgment motions in May 2018.” Id. at 3. The Zakzok plaintiffs also asserted that certain individuals’ visa applications had been “categorically denied” without the opportunity to apply for a waiver under the Proclamation, and therefore they believed there is a “need for prompt discovery on, among other things, the Defendants’ implementation of the Proclamation.” Id.
The Court then scheduled a telephone conference with all of the parties in all three cases to discuss the pre-motion letters. During that telephone conference, the IRAP plaintiffs stated that they were not affirmatively requesting permission to begin discovery, but that, in the event the Court were to allow discovery to proceed in IAAB and Zakzok, the plaintiffs in IRAP would also request permission to begin discovery. Ultimately, the Court directed the parties to submit further briefing regarding whether these proceedings should be stayed pending resolution of all appeals, and whether discovery should be permitted to begin. See IAAB, ECF No. 61; Zakzok, ECF No. 49. The Court also directed the parties to meet-and-confer regarding whether the three cases should be formally consolidated.
Following the conference call with the Court, the parties met-and-conferred regarding whether the cases should be consolidated. The Government represented its position that the cases should be consolidated if they were to move forward, to minimize (to the extent possible) the
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burdens associated with forcing the Government to respond to discovery in three separate cases brought by three separate groups of plaintiffs. In response, the plaintiffs in all three cases stated that they oppose consolidation at this time, and declined to provide their position on whether consolidation would be appropriate if the cases were to move forward into discovery. See Meetand-Confer Correspondence (attached hereto).
Consistent with the briefing schedule ordered by the Court, the Government now moves to stay all proceedings in both IAAB and Zakzok pending final resolution of the preliminaryinjunction appellate proceedings.
STANDARD OF REVIEW “The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). That power applies “especially in cases of extraordinary public moment,” when “a plaintiff may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted.” Id. at 707. A district court may exercise its broad discretion to promote “economy of time and effort for itself, for counsel, and for litigants.” DeRosa v. Walsh, 541 F. App’x 250, 252 (4th Cir. 2013) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Where such a stay is considered, the court need not find that the two cases possess identical issues or that resolution of one will control the other; a finding that the cases present substantially similar issues is sufficient. See Landis, 299 U.S. at 254.
ARGUMENT This Court should stay all proceedings in these cases pending resolution of the preliminaryinjunction appellate proceedings. Those appeals present many (if not all) of the same legal questions that this Court would have to address in resolving a motion to dismiss, and it would make little sense for the parties to devote time and resources to briefing and deciding those
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questions when they are currently pending before the Fourth Circuit. Indeed, the four questions on which the Supreme Court has now granted review in the Hawaii case are the identical questions that this Court would have to confront in connection with the Government’s motion to dismiss.
At a minimum, this Court should not allow discovery to proceed in these cases. Allowing discovery—particularly while important legal questions remain unresolved—would impose a heavy burden on both Defendants and the Court, given the likely topics on which plaintiffs will seek discovery and the virtual certainty that their discovery requests will lead to motions practice before this Court. All of the time and resources devoted to discovery, moreover, may prove entirely unnecessary depending on whether the Court of Appeals—if not the Supreme Court—conclusively resolves the Proclamation’s legality. Accordingly, a brief stay of proceedings—for the short period of time necessary for appellate proceedings to conclude—is amply warranted. I. The Court Should Stay All Further Proceedings Pending Resolution of Appellate
Proceedings District courts routinely stay proceedings where resolution of an appeal may provide guidance to the district court in deciding issues before it. See Landis, 299 U.S. at 254. The Fourth Circuit has long recognized, in particular, that a district court may properly exercise its discretion to issue a stay “pending the outcome of a similar suit.” Amdur v. Lizars, 372 F.2d 103, 106 (4th Cir. 1967); see also Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987) (table) (“We find that the district court acted within its discretion in staying proceedings while awaiting guidance from the Supreme Court in a case that could decide relevant issues.”); Preston v. United States, 2015 WL 221633, at *9 (D. Md. Jan. 15, 2015) (holding motion to dismiss in abeyance “pending the final outcome” of a similar case pending before the Supreme Court, because “a decision at this time would be an inefficient use of the [district] Court’s resources”); In re Mut. Funds Inv. Litig., 2011 WL 1540134, at *2 (D. Md. Apr. 20, 2011) (“[A] stay would promote judicial economy by avoiding
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the litigation of a set of disputed issues that the Fourth Circuit is likely to soon resolve in a similar case.”).
Here, of course, the relevant case on appeal is not just “similar”; it is identical, and the Fourth Circuit’s and/or Supreme Court’s resolution of the appeal will likely provide this Court with dispositive guidance on some or all of the issues that this Court would need to confront if it permitted the cases to move forward. For example, if these cases are not stayed, the next step would be that the Government would move for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In doing so, the Government would raise, inter alia, the same arguments it made in opposition to plaintiffs’ preliminary-injunction motion, and the same arguments that it has now raised before the Fourth Circuit in connection with the appeal of the preliminary-injunction motion—i.e., threshold jurisdictional defenses, arguments regarding the proper interpretation of 8 U.S.C. §§ 1152(a) and 1182(f), and the legality of the Proclamation under the different Establishment Clause frameworks.
Indeed, these issues are the very same ones that the Supreme Court has now agreed to decide in connection with the Hawaii case. For example, the Supreme Court granted review on “[w]hether respondents’ challenge to the President’s suspension of entry of aliens abroad is justiciable.” Petition for Certiorari, Trump v. Hawaii, No. 17-965 (U.S. Jan. 5, 2018). That is exactly the same legal question that this Court would have to decide in the context of the Government’s motion to dismiss. Similarly, this Court would also have to decide the Proclamation’s validity under the relevant statutes, which the Supreme Court has likewise agreed to consider—i.e., “[w]hether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad.” Id. Finally, the Supreme Court is also evaluating whether the Proclamation violates the Establishment Clause. See Hawaii, No. 17-965, 583 U.S. ___ (U.S.
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Jan. 19, 2018) (directing the parties to brief and argue that question). It makes little sense for this Court to move forward and decide these legal issues in the context of a motion to dismiss when binding appellate courts—both the en banc Fourth Circuit and the Supreme Court—are currently considering the exact same issues.
This Court has recognized this very point at an earlier stage of the IRAP litigation. After the Court preliminarily enjoined § 2(c) of Executive Order No. 13,780 (“EO-2”), see IRAP, ECF No. 150, and while that injunction was pending before the Fourth Circuit on appeal, the IRAP plaintiffs sought leave to file another motion for preliminary relief against § 6 of EO-2. See IRAP, ECF No. 177. The Government opposed that motion on both jurisdictional and equitable grounds, arguing that it did not make sense for the Court to decide another motion while some (if not all) of the key issues were already on appeal before the Fourth Circuit. See IRAP, ECF No. 180 at 9-12. The Court agreed:
Even if the Court had jurisdiction over the proposed motion, it would exercise its discretion to stay both the briefing of the motion and its determination pending the Fourth Circuit’s review of the March 16, 2017 preliminary injunction. . . . The Fourth Circuit’s forthcoming analysis on the Establishment Clause claim on appeal would provide this Court with useful guidance on how to resolve the issues to be presented in the proposed motion. IRAP, ECF No. 182 at 5. Those same reasons of judicial economy apply here, as recognized by the numerous other courts hearing challenges to the Proclamation and other prior policies. In circumstances similar to those present here, those courts have likewise stayed further district court proceedings pending resolution of ongoing appeals. For example, after EO-2 was enjoined and the Hawaii case was on appeal, the Western District of Washington stayed all further proceedings in its court because “resolution of the Hawaii appeal is likely to provide guidance to this court,” including by “help[ing] the court in resolving Defendants’ motion to dismiss.” Washington v. Trump, 2017 WL
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2172020, at *2-3 (W.D. Wash. May 17, 2017). Similarly, with respect to EO-1, the District of Hawaii stayed further proceedings pending the appeal of the Western District of Washington injunction:
Because many of the State’s legal arguments presented in its Motion for TRO are presently before the Ninth Circuit, it makes little sense to expend the resources necessary for a full presentation of those same issues in this forum while awaiting guidance from the appellate court. The more efficient course is to await a pronouncement from the governing appellate bodies, at which point the bulk of the determinative issues may very well be settled in most material respects. Hawai’i v. Trump, 233 F. Supp. 3d 850, 855 (D. Haw. 2017). Finally, after the Government filed a petition for certiorari with respect to EO-2, the District Court for the District of Columbia stayed all further proceedings in a pending challenge because “a stay pending the result of the Supreme Court’s decision is the most appropriate path for conserving the court’s resources and adjudicating these cases in the most efficient manner possible.” Pars Equality Ctr. v. Trump, No. 17-cv-255 (D.D.C.), ECF No. 91 at 2 (Order of June 20, 2017). These are only some of the examples of the stays that have been entered in cases challenging the Proclamation or other prior policies.* The logic of these cases is equally applicable here—i.e., when preliminary-injunction appeals are ongoing, it would be inefficient and burdensome to move forward with additional district court proceedings regarding the same issues. Indeed, the IAAB and Zakzok plaintiffs themselves recognize that it makes little sense to proceed with further merits briefing until after the preliminary-injunction appeals have concluded.
* See also, e.g., Arab Am. Civil Rights League v. Trump, 2017 WL 2501060 (E.D. Mich. June 9, 2017); Ali v. Trump, 2017 WL 2222873, at *1 (W.D. Wash. May 22, 2017); Pars Equality Ctr. v. Trump, No. 17-cv-255 (D.D.C.), ECF No. 84 (Order of May 11, 2017); Washington v. Trump, 2017 WL 1050354 (W.D. Wash. Mar. 17, 2017); Ali v. Trump, 241 F. Supp. 3d 1147, 1150 (W.D. Wash. 2017). Several cases have been stayed with the plaintiffs’ consent as well. See, e.g., Sarsour v. Trump, No. 17-cv-120 (E.D. Va.), ECF No. 50 (Order of Jan. 9, 2018); Universal Muslim Assoc. of Am. (UMAA) v. Trump, No. 17-cv-537 (D.D.C.), Minute Order of Nov. 3, 2017.
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See IAAB, ECF No. 58 at 3 (asserting that “the parties should fully develop the record so that they may file summary judgment motions or go to trial shortly after the interlocutory appeal is resolved” (emphasis added)); Zakzok, ECF No. 46 at 1 (requesting entry of a scheduling order “so that this case can proceed efficiently after the interlocutory appeal is resolved” (emphasis added)). This recognition undermines plaintiffs’ effort to resist the Government’s stay motion here: for the same reasons it does not make sense to proceed with summary-judgment briefing prior to resolution of the appellate proceedings, it also does not make sense to proceed with motion-todismiss briefing given the identical nature of the legal issues.
Moreover, plaintiffs’ pre-motion letters simply assume the premise of their argument—that further proceedings will in fact be necessary after the preliminary-injunction appeals are resolved. See, e.g., IAAB, ECF No. 58 at 1 (requesting permission to begin discovery “so that the case can be ready for resolution on the merits expeditiously after the interlocutory appeal is resolved”); Zakzok, ECF No. 46 at 1. But that assumption is itself highly speculative. Even when the Supreme Court has granted certiorari in a case arising at the preliminary-injunction stage, the Court has frequently gone on to resolve the merits of the legal claims with little attention paid to the preliminary nature of the case. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Arizona v. United States, 567 U.S. 387 (2012). Indeed, the prior Supreme Court proceedings regarding EO-2 highlight this point: the parties’ briefs paid little attention to the preliminary-injunction factors, and instead focused on arguing the ultimate legality of EO-2. See, e.g., Brief for Respondents, Trump v. IRAP, No. 16-1436 (filed Sept. 11, 2017), available at http://www.scotusblog.com/wp-content/uploads/2017/09/2017-09-11-IRAP-merits-brief.pdf. There is at least a significant possibility, therefore, that no further proceedings will be necessary after the preliminary-injunction appeals are resolved—which further underscores why it would be
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an imprudent use of the Court’s and the parties’ resources to proceed now, without awaiting guidance (if not dispositive resolution) from the appellate courts.
Particularly given the identity of issues between the ongoing preliminary-injunction appeals and the issues this Court would be required to decide if it moved forward with a motion to dismiss, a stay of all district court proceedings is amply warranted pending resolution of the appellate proceedings, including proceedings in the Supreme Court. II. At A Minimum, the Court Should Stay Discovery Given the Heavy Burden It Would
Impose on This Court and the Parties Even if this Court is not inclined to stay all proceedings, it certainly should not permit discovery to proceed at this time. Assuming the appellate decisions are not fully dispositive of these cases, the decisions will very likely provide guidance regarding the availability and scope of discovery—issues that are currently disputed between the parties. Thus, proceeding with discovery now would virtually guarantee significant motions practice before this Court. That is especially true given the expansive and intrusive nature of the discovery that plaintiffs are likely to propound. In order to avoid the potential waste of resources associated with proceeding with discovery now, as well as the significant burdens associated with allowing discovery to proceed, this Court should, at a minimum, not permit discovery to proceed until after the preliminaryinjunction appeals are concluded (or at least until after a motion to dismiss is fully briefed and decided). A. The Forthcoming Appellate Decisions Will Likely Provide Important
Guidance Regarding Discovery Not only will the Fourth Circuit’s and Supreme Court’s decisions likely inform the legal analysis regarding the validity of the Proclamation, those decisions will likely provide important guidance regarding the scope and availability of discovery as well. As discussed during the telephone conference, the Government’s view is that no discovery
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is appropriate because, under the applicable law, the Proclamation is valid if it is supported by a “facially legitimate and bona fide reason,” which should be judged according to the four corners of the Proclamation itself. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); see Fiallo v. Bell, 430 U.S. 787, 792-96 (1977). Moreover, even if a court could look beyond the four corners of the Proclamation, any review would be limited to “openly available data” that is accessible to an “objective observer,” like the law’s text or obvious effects, the policy it replaced, official public statements of the law’s purpose, or “comparable official act[s].” McCreary Cty. v. ACLU, 545 U.S. 844, 862-63 (2005). Thus, there would be no need for discovery of any internal Government documents regarding the Proclamation.
These issues—the governing framework for considering the Proclamation’s legality, including what evidence is relevant—are now squarely before the Fourth Circuit. See, e.g., First Brief of Appellants at 39-53, IRAP v. Trump, No. 17-2231(L) (4th Cir. Nov. 1, 2017), ECF No. 58. They are also now squarely pending before the Supreme Court. See Part I, supra. To be sure, plaintiffs disagree that Mandel governs review of the Proclamation. But “the salient point for purposes of Defendants’ stay motion is that resolution of the . . . appeal is likely to provide guidance to this court on that issue and by extension on the appropriate scope of discovery.” Washington, 2017 WL 2172020, at *2; see also id. (“Although the Ninth Circuit is not considering discovery issues on appeal, it is likely to decide legal issues that will impact the court’s resolution of the parties’ discovery disputes here by clarifying ‘the applicable law or relevant landscape of facts that need to be developed.’” (quoting Hawaii, 2017 WL 536826, at *5)). Thus, it makes good sense to postpone discovery until after the Court of Appeals and Supreme Court have issued their decisions, thereby providing further guidance on the applicable legal framework for evaluating the Proclamation’s validity.
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In contrast, if discovery were to begin before the appeals were resolved, that would simply lead to significant motions practice between the parties regarding the availability and scope of discovery. This motions practice would not move the cases closer to resolution, but would instead consume significant time and resources of both the parties and the Court—all of which could have been avoided if discovery were not permitted until after the appellate proceedings concluded.
Indeed, allowing discovery to begin now would only further complicate matters once the preliminary-injunction appeals are concluded. To the extent the appellate courts provide dispositive resolution of these cases, then all of the time and resources devoted to discovery will have been entirely for naught. Even if the appellate courts do not dispositively resolve these cases, however, that will still lead to wasted time and resources for the parties and the Court: once the Fourth Circuit and Supreme Court have ruled, this Court—presumably with the assistance of the parties—would have to go back and re-evaluate all of its prior decisions to ensure consistency with the governing legal framework announced by the appellate court. Accordingly, the most sensible and efficient approach—for both the parties and the Court—is to stay discovery until after appellate proceedings conclude. See Washington, 2017 WL 1050354, at *5 (“Considerable judicial resources may be wasted if the appellate court’s controlling decision changes the applicable law or the relevant landscape of facts that need to be developed.”).
B. Plaintiffs Have Not Justified a Need for Immediate Discovery, and Any Such Discovery is Likely to Be Heavily Burdensome, Intrusive, and Implicate Privileged Material
Notably absent from plaintiffs’ pre-motion letters is any explanation as to why they should be permitted discovery at this early stage of the proceedings—before resolution of any motion to dismiss, and before conclusion of the ongoing appeals. The plaintiffs only vaguely mention the topics on which they seek discovery, and nowhere do they explain how their anticipated discovery would actually be relevant to their claims.
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1. The Zakzok plaintiffs are the only ones to mention any specific topic on which they seek discovery. Their pre-motion letter makes various assertions regarding the implementation of the waiver provision of the Proclamation, and then states that they would like discovery into “among other things, the Defendants’ implementation of the Proclamation.” Zakzok, ECF No. 46 at 3.
As an initial matter, it is unclear how information regarding the Government’s after-thefact implementation of the Proclamation would shed light on whether the Proclamation was valid at its issuance. And specifically with respect to the waiver provision, the Zakzok plaintiffs relied on it nowhere in connection with their merits arguments. See Zakzok, ECF No. 33. At most, the waiver provision’s implementation would relate only to the Government’s ripeness argument. But that ripeness argument is no longer relevant with respect to at least one Plaintiff in IAAB, John Doe #6, whose mother has now been denied a waiver under the Proclamation. See Mot. for Judicial Notice, IRAP v. Trump, No. 17-2231(L) (4th Cir. Dec. 22, 2017), ECF No. 145-1. Thus, it is entirely unclear how discovery on the Proclamation’s implementation would actually bring these cases any closer to resolution on the merits.
More fundamentally, that type of discovery—about individuals’ (or categories of individuals’) visa applications and/or denials—would run headlong into the confidentiality protections afforded visa records under 8 U.S.C. § 1202(f), as well as principles of consular nonreviewability. Plaintiffs have repeatedly insisted that their claims seek only to challenge a general policy, not the basis for any actual visa denials. Allowing plaintiffs to proceed with discovery into how the Proclamation has been implemented with respect to specific individuals’ visa grants or denials would go beyond even plaintiffs’ description of what the doctrine of consular nonreviewability permits, and would represent a significant intrusion into the State Department’s consular operations. Thus, the only topic of discovery mentioned by the Zakzok plaintiffs is
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irrelevant, overly intrusive, and contrary to U.S. law. 2. Because the IAAB plaintiffs have not specified or limited the subjects on which they
seek discovery, the Court can only assume that they will seek extremely broad discovery on a variety of topics. To demonstrate the potential breadth of what the IAAB plaintiffs might seek, the Court need only refer back to what the IRAP plaintiffs sought at an earlier stage of these proceedings (and presumably what the IRAP plaintiffs would again seek if they are also permitted to engage in discovery).
In connection with the IRAP plaintiffs’ claims against EO-2, they sought expansive discovery on a variety of topics. For example, they submitted four document requests, two of which sought “[a]ll memoranda, policies, projections, reports, data, summaries, or similar documents relating to the development of the January 27 Order,” as well as “relating to the development of any replacement for the January 27 Order.” IRAP, ECF No. 63-1 at 7 (Requests for Production of Documents Nos. 1 and 3).
This type of discovery—seeking internal Government documents relating to the development of the Proclamation—is also irrelevant to plaintiffs’ claims, as plaintiffs themselves have admitted. At the preliminary-injunction hearing regarding the Proclamation, counsel for IRAP—when arguing on behalf of all plaintiffs—affirmatively stated that internal Government documents were not relevant to their claims:
THE COURT: I think I read in your papers that you said the government’s refused to provide the underlying report [from the Secretary of Homeland Security to the President making recommendations about the Proclamation]. Does that mean that you asked for it or how do you know that they’ve refused to do that or from the other case?
MR. JADWAT: They have said that they will not provide it publicly in the other case and that’s, you know, that's their decision. And we’re not suggesting that there’s a need for this Court to look at the report because the question is what the reasonable observer would perceive and understand from the facts that are readily
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available to the public. Prelim. Inj. Hr’g Tr. at 21-22 (emphasis added). Thus, plaintiffs have conceded that internal Government documents are irrelevant to their claims. This concession should, at a minimum, foreclose plaintiffs from seeking immediate discovery of such documents prior to resolution of the ongoing appeals.
3. To the extent plaintiffs might nonetheless be permitted to pursue this type of discovery notwithstanding the information’s lack of relevance, any such discovery would be highly burdensome and intrusive, providing an independent reason why it should not be permitted at this stage. The prior IRAP requests are again a perfect example. It would not be a stretch for plaintiffs’ broadly worded document requests to extend to huge swaths of documents and information stored at the Department of Homeland Security, the Department of State, and the Office of the Director of National Intelligence: e.g., policy memoranda regarding the Proclamation and any other ‘related’ policies; data relating to visa admissions and entry of foreign nationals; intelligence reports regarding potential future terrorist attacks; summaries of prior terrorism investigations and prosecutions; and numerous other sensitive documents related to our Nation’s foreign relations, national security, and immigration activities. Even apart from the sheer volume of documents being burdensome, the contents of such documents would almost certainly be highly sensitive— touching on law-enforcement sensitivities and potentially classified information.
Moreover, many of those documents would also be subject to other privileges. Records pertaining to the issuance or refusal of visa applications are considered confidential and protected from disclosure by statute. See 8 U.S.C. § 1202(f). Additionally, the IRAP document requests, on their face, purport to seek privileged information—i.e., documents related to the development of a policy. Any such documents would clearly qualify as pre-decisional and deliberative, thus subject
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to the Government’s deliberative process privilege. See City of Virginia Beach v. Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) (“To invoke the privilege successfully, the government must show that, ‘in the context in which the materials are used,’ the documents are both predecisional and deliberative.”); Jones v. Murphy, 256 F.R.D. 510, 515-16 (D. Md. 2008) (Gauvey, M.J.) (“The executive or deliberative-process privilege exists to protect the governmental decision-making process. It protects from disclosure advice, opinions and recommendations that are part of the decision-making process; the goal is ‘to prevent injury to the quality of agency decisions.’”), aff’d, 2009 WL 604937 (D. Md. Feb. 23, 2009).
Additionally, given that the policy challenged here is a Proclamation signed by the President, plaintiffs may also try to seek discovery from the Executive Office of the President. In doing so, plaintiffs could threaten to place this Court on a collision course with the presidential communications privilege and/or the President’s more general Executive Privilege. See generally Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (“The presidential communications privilege, a ‘presumptive privilege for [p]residential communications,’ preserves the President’s ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)); In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) (privilege protects “communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate”).
When considering how (and whether) to proceed in civil discovery, however, courts are obligated to avoid intruding on these sensitive privileges of the Executive Branch. See Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 385 (2004) (“The high respect that is owed
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to the office of the Chief Executive . . . is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery,” and “the Executive’s ‘constitutional responsibilities and status [are] factors counseling judicial deference and restraint’ in the conduct of litigation against it.”); United States v. McGraw-Hill Cos., Inc., No. 13-cv-0779-DOC (JCGx), 2014 WL 8662657, at *8 (C.D. Cal. Sept. 25, 2014) (explaining that courts should take a “methodical approach” to discovery of White House documents because “[t]he Supreme Court has been crystal clear: courts must ensure that the invocation of executive privilege is the last resort”). The burden to justify potentially intrusive discovery falls squarely on plaintiffs. See Cheney, 542 U.S. at 388 (discovery is permissible “only after the party requesting the information . . . ha[s] satisfied his burden of showing the propriety of the requests,” because the Executive Branch does not “bear the onus of critiquing the unacceptable discovery requests line by line”). Plaintiffs here certainly have not carried their burden of demonstrating why they should be entitled to discovery at this stage, particularly when they will likely seek privileged or otherwise sensitive materials.
4. In short, it appears (based on the limited record available) that if discovery were to proceed, plaintiffs are likely to request discovery on irrelevant materials, in an overly burdensome and intrusive manner, and in a way that would threaten significant Executive Branch privileges. All of those problems would only be exacerbated by the fact that there are three separate sets of plaintiffs here, each of which has expressed interest in pursuing discovery against the Government. It would be tremendously burdensome for the Government to respond to three separate sets of plaintiffs, in three separate actions, all pursuing discovery against the same challenged policy— and to do so all within a five-month period as the IAAB and Zakzok plaintiffs suggest. Even if it were possible to decrease some of those burdens by formally consolidating the actions for pre-trial purposes, all three sets of plaintiffs currently oppose consolidation of the cases, and refuse to state
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whether they would agree to consolidation if the cases moved forward into discovery. See Meetand-Confer Corresp. (attached hereto). Thus, proceeding with discovery in these three separate cases would be tremendously onerous for the Government.
In these circumstances—involving burdensome, intrusive discovery into sensitive areas, from multiple parties in multiple different actions—the Court should not allow discovery to proceed before resolution of the ongoing appeals, or at a minimum before resolving the Government’s threshold arguments presented in a motion to dismiss. Just recently the Supreme Court was confronted with a lower court order requiring the Government to disclose numerous documents, entered prior to the lower court’s resolution of the Government’s threshold defenses. The Supreme Court held that the district court should have “first resolved the Government’s threshold arguments” before ordering disclosure, because “those [threshold] arguments, if accepted, likely would eliminate the need for” such disclosure. In re United States, 138 S. Ct. 443, 445 (2017). That holding is directly applicable here: this Court should not allow discovery to proceed before resolving the Government’s threshold arguments, any of which, if accepted, would eliminate the need for discovery here. See id. at 444-45. And given that those threshold arguments are now pending before both the Fourth Circuit and the Supreme Court, there is even more reason here not to proceed with discovery. Cf. id. at 445 (directing that the district court should “rule on the Government’s threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal,” and only thereafter should the district court consider whether disclosure of documents is “necessary and appropriate”).
Again, allowing discovery to proceed will only result in significant motions practice before this Court regarding the relevance, burden, and potential privilege issues associated with plaintiffs’ requests. At best, this Court will need to re-evaluate its rulings on all of those issues once the
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appellate courts announce the governing legal framework. At worst, all of that motions practice (and the other burdens of discovery) will have been wholly unnecessary because the appellate courts will dispositively resolve these cases. In either scenario, it is far more efficient for both the parties and the Court simply to stay discovery pending resolution of the ongoing appellate proceedings, including Supreme Court proceedings. III. The Requested Stay Would Be Reasonable in Length, and Would Not Cause Any
Prejudice to Plaintiffs In contrast to the huge (and potentially wasteful) drain on resources that will result if this case proceeds before the ongoing appeals are resolved, plaintiffs will not suffer any prejudice to their ability to conduct discovery during the brief period in which the Government is requesting that proceedings be stayed. As this Court is aware, the Government has moved with great speed at every stage of this litigation, and the ongoing appeals are proceeding in an expedited manner. After the Government noticed its appeal of the preliminary injunction on October 20, 2017, the parties fully briefed the matter and the en banc Fourth Circuit held oral argument on December 8, 2017—less than two months after the appeal was first noticed. The parties have moved with similar speed in the Hawaii litigation: the Government noticed its appeal on October 24, 2017; the Ninth Circuit held argument on December 6, 2017; the Ninth Circuit issued its decision on December 22, 2017; the Government filed its petition for certiorari two weeks later, on January 5, 2018; and the Supreme Court granted that petition earlier today, on January 19, 2018. Consistent with the pace at which these cases have been progressing, any stay of proceedings to allow appellate proceedings to conclude will be relatively short. The Supreme Court itself has noted that it “expect[s] that the Court of Appeals will render its decision with appropriate dispatch.” IRAP, 138 S. Ct. at 542. Indeed, even plaintiffs acknowledge that appellate
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proceedings will likely conclude soon, because they suggest that discovery should end in May 2018, which would allow the parties (in their view) to “file summary judgment motions or go to trial shortly after the interlocutory appeal is resolved.” IAAB, ECF No. 58 at 3.
At most, then, the Government’s requested stay would be for a short period of a few months. That is not an inordinate amount of time, as other courts have recognized. See Washington, 2017 WL 1050354, at *4 (“Based on the speed with which the Ninth Circuit proceeded in the previous appeal in this case, the court also does not anticipate that a stay will last long.”); In re Mut. Funds Inv. Litig., 2011 WL 1540134, at *2 (“In this case, because the Steinberg case has already been fully briefed on appeal and is ready to be argued before the Fourth Circuit, the length of the stay should not be inordinate.”).
In their pre-motion letters, the plaintiffs argued that they “suffer irreparable harm each day the Proclamation remains in effect.” IAAB, ECF No. 58 at 2. But they made that same argument to the Supreme Court, and the Supreme Court nonetheless permitted the Proclamation to go into effect while the litigation unfolds. Nothing about that stay order should prompt this Court to move forward with the case in an inefficient or burdensome manner, as plaintiffs now suggest. To the contrary, the Supreme Court’s stay order underscores why a stay of further proceedings is amply warranted here: the legal landscape continues to be in flux; the appellate courts will act “with appropriate dispatch” in resolving the preliminary-injunction appeals; and the Supreme Court itself has now agreed to determine the ultimate legality of the Proclamation. Rather than moving forward with further proceedings now, the Supreme Court’s stay order thus demonstrates why a short stay of proceedings for a few months is appropriate in these cases.
CONCLUSION The Court should stay all proceedings in IAAB and Zakzok pending final resolution of the preliminary-injunction proceedings before the Fourth Circuit and/or the Supreme Court.
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Dated: January 19, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
STEPHEN M. SCHENNING Acting United States Attorney
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Daniel Schwei DANIEL SCHWEI (Bar No. 96100) MICHELLE R. BENNETT (Bar No. 806456) KEVIN SNELL JOSEPH C. DUGAN Senior Trial Counsel / Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington DC 20530 Tel: (202) 305-8693 Fax: (202) 616-8470 E-mail: daniel.s.schwei@usdoj.gov

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Case 8:17-cv-02921-TDC Document 63-3 Filed 01/19/18 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION

____________________________________

)

IRANIAN ALLIANCES ACROSS

)

BORDERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-02921-TDC

)

DONALD J. TRUMP, in his official

)

capacity as President of the United

)

States, et al.,

)

)

Defendants.

)

____________________________________)

)

EBLAL ZAKZOK, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02969-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., )

)

Defendants.

)

____________________________________)

[Proposed] ORDER

Upon considering Defendants’ motion to stay proceedings pending resolution of

preliminary-injunction appeals, the supporting memorandum, any response and reply thereto, and

the complete record in this matter, the Court hereby:

GRANTS Defendants’ motion;

ORDERS that all further proceedings in district court in both of the above-captioned

matters are hereby STAYED pending final resolution of the preliminary-injunction appeals in

these cases before the United States Court of Appeals for the Fourth Circuit and/or the Supreme

Case 8:17-cv-02921-TDC Document 63-3 Filed 01/19/18 Page 2 of 2
Court; and ORDERS that, within fourteen (14) days of final disposition of the preliminary-injunction
appeals in these cases, the parties shall submit a joint status report setting forth their positions on whether any further district court proceedings are necessary, and if so, a proposed schedule for those proceedings.
SO ORDERED.

Signed this ___ day of ____________, 2018.

___________________________ Judge Theodore D. Chuang

 
 Case 8:17-cv-02921-TDC Document 65 Filed 02/02/18 Page 1 of 37
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.
Defendants.
EBLAL ZAKZOK, et al., Plaintiffs,
v. DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants.

Civil Action No.: 17-CV-2921 Judge Chuang
Civil Action No.: 17-CV-2969 Judge Chuang

MEMORANDUM IN OPPOSITION TO MOTION TO STAY AND IN SUPPORT OF MOTION FOR ENTRY OF A SCHEDULING ORDER

Case 8:17-cv-02921-TDC Document 65 Filed 02/02/18 Page 2 of 37
TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 ARGUMENT .................................................................................................................................. 5 I. These Cases Should Not Be Stayed Pending Appellate Review Of The
Preliminary Injunction Rulings In This Case And The Hawaii Case. ................................ 5 A. The Government Has Not Met Its High Burden To Obtain A Stay........................ 7
1. Plaintiffs suffer each day from this unconstitutional policy. ...................... 7 2. The Government does not present a strong case of hardship.................... 11 3. The Court’s stay of proceedings for EO-2 does not support a stay
of proceedings here. .................................................................................. 17 B. The Preliminary Injunction Appeal Will Not Conclusively Decide This
Case....................................................................................................................... 18 1. The argument that the Supreme Court will decide the preliminary-
injunction appeal on the merits is speculative. ......................................... 18 2. Plaintiffs have claims that are not before appellate courts. ...................... 21 II. The Parties Should Immediately Begin The Discovery That Will Be Necessary Regardless Of The Supreme Court’s and Fourth Circuit’s Rulings. ................................ 22 A. The Government’s Desire To Wait Before Filing A Motion To Dismiss Ignores That Discovery Need Not Wait Until The Court Rules On The Government’s Motion. .......................................................................................... 22 B. Plaintiffs’ Initial Requests Will Not Be Burdensome And Will Seek Discovery That Will Be Necessary Regardless Of The Appellate Rulings.......... 23 1. Reports (with attachments) ....................................................................... 23 2. Implementation of the waiver ................................................................... 27 C. The Parties Will Need Time To Negotiate A Protective Order If The Government Takes Discovery............................................................................... 29 CONCLUSION............................................................................................................................. 30
i

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TABLE OF AUTHORITIES

CASES

Page(s)

ACLU of Ky. v. McCreary County, 607 F.3d 439 (6th Cir. 2010) ...................................................................................................25

Actividentity Corp. v. Intercede Grp. PLC, No. 08 Civ. 4577, 2009 WL 10691373 (N.D. Cal. Dec. 30, 2009) .........................................16

Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967) ...................................................................................................19

Arab Am. Civil Rights League v. Trump, No. 17 Civ. 10310, 2017 WL 2501060 (E.D. Mich.) (June 9, 2017) ......................................17

Arab Am. Civil Rights League v. Trump, No. 17-10310 (E.D. Mich.) (July 6, 2017), ECF No. 115 .......................................................29

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004)...........................................................................................................18, 19

Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997) .................................................................................................25

Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of State, No. 17 Civ. 7520, 2018 WL 369783 (S.D.N.Y. Jan. 10, 2018).........................................24, 27

Brown v. Chote, 411 U.S. 452 (1973).................................................................................................................19

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003) ...............................................................................................5, 22

Chamber of Commerce v. Servin, No. 09 Civ. 2014, 2011 WL 871735 (D.D.C. Mar. 11, 2011).................................................16

Citifinancial, Inc. v. Lightner, No. 06 Civ. 145, 2007 WL 3088087 (N.D. W. Va. Oct. 22, 2007) .........................................16

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).................................................................................................................21

Cognate BioServices, Inc. v. Smith, No. 13 Civ. 1797, 2015 WL 5673067 (D. Md. Sept. 23, 2015) ..............................................15

DKS Inc. v. Corp. Bus. Sols., Inc., No. 15 Civ. 132, 2015 WL 6951281 (E.D. Cal. Nov. 10, 2015) .............................................16
ii

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Doolin Sec. Sav. Bank, F.S.B. v. F.D.I.C., 53 F.3d 1395 (4th Cir. 1995) ...................................................................................................29
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).................................................................................................................19
Dynport Vaccine Co. v. Lonza Biologics, Inc., No. 14 Civ. 2921, 2015 WL 5768707 (D. Md. Jan. 10, 2015) ..................................................7
Edwards v. Aguillard, 482 U.S. 578 (1987).................................................................................................................25
Fed. Ins. Co. v. S. Lithoplate, Inc., No. 12 Civ. 793, 2013 WL 4045924 (E.D.N.C. Aug. 8, 2013) ...............................................15
Geiser v. Simplicity, Inc., No. 10 Civ. 21, 2011 WL 128776 (N.D. W. Va. Jan. 14, 2011) .............................................14
Hawaii v. Trump, 233 F. Supp. 3d 850 (D. Haw. 2017) .................................................................................12, 17
Hawaii v. Trump, No. 17-17168 (9th Cir. Nov. 13, 2017), ECF No. 39 ................................................................5
Hawaii v. Trump, No. 17-17168, 2017 WL 6554184 (9th Cir. Dec. 22, 2017)......................................................5
Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987) .................................................................................................19
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) ...............................................................................................3, 20
Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017) .........................................................................................12
Kerry v. Din, 135 S. Ct. 2128 (2015) .............................................................................................................20
Kleindienst v. Mandel, 408 U.S. 753 (1972).................................................................................................................20
Lam v. City & Cty. of San Francisco, No. 10 Civ. 4641 (N.D. Cal. July 22, 2015), ECF No. 130 .....................................................13
Landis v. N. Am. Co., 299 U.S. 248 (1936).............................................................................................................6, 11
iii

Case 8:17-cv-02921-TDC Document 65 Filed 02/02/18 Page 5 of 37
Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................26
Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) .................................................................................................13
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................25
Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) ...................................................................................................26
Mullins v. Suburban Hosp. Healthcare Sys., Inc., No. 16 Civ. 1113, 2017 WL 3023282 (D. Md. July 17, 2017) ..................................................6
In re Mut. Funds Inv. Litig., No. 04 MD 15863, 2011 WL 1540134 (D. Md. Apr. 20, 2011)..............................................19
Nero v. Mosby, No. 16 Civ. 1288, 2017 WL 1048259 (D. Md. Mar. 20, 2017) ...........................................7, 14
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................11
Pharm. Care Mgmt. Ass’n v. Maine Attorney Gen., 332 F. Supp. 2d 258 (D. Me. 2004) .........................................................................................15
Preston v. United States, No. 14 Civ. 1920, 2015 WL 221633 (D. Md. Jan. 15, 2015) ..................................................19
Trump v. Hawaii, 138 S. Ct. 542 (2017) .................................................................................................................5
Trump v. Hawaii, 583 U.S. ___ (Jan. 19, 2018) .....................................................................................................5
In re United States, 138 S. Ct. 443 (2017) ...............................................................................................................13
Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)...........................................................................................................18, 19
Vil. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).................................................................................................................26
Washington v. Trump, No. 17 Civ. 0141, 2017 WL 2172020 (W.D. Wash. May 17, 2017) .......................................17
iv

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Williford v. Armstrong World Indust., Inc., 715 F.2d 124 (4th Cir. 1983) ...............................................................................................6, 10
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................18
Wise v. Pine Tree Villa, LLC, No. 14 Civ. 517, 2015 WL 1109006 (W.D. Ky. Mar. 11, 2015).............................................16
STATUTES 5 U.S.C. § 557(c)(3)(A) .................................................................................................................29 8 U.S.C. § 1152(a) ...........................................................................................................................4 8 U.S.C. § 1182(f).................................................................................................................. passim OTHER AUTHORITIES 82 Fed. Reg. 8977 ......................................................................................................................3, 17 82 Fed. Reg. 13209 ................................................................................................................ passim 82 Fed. Reg. 45161 ..........................................................................................................................3 16 Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice
and Procedure § 3921.2 (3d ed. 1999) ....................................................................................11 D. Md. Local Rule 104 ............................................................................................................13, 14 Fed. R. Civ. P. 12 ................................................................................................................... passim Fed. R. Civ. P. 16(b) ......................................................................................................................22 Fed. R. Civ. P. 26 ................................................................................................................... passim Fed. R. Civ. P. 34(b)(2)..................................................................................................................14 Lyle Denniston, “Justices to Rule on Trump Immigration Limits,” LYLE
DENNISTON LAW NEWS BLOG (Jan. 19, 2018), http://lyldenlawnews.com/2018/01/19/justices-rule-trump-immigration-limits ........................7
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INTRODUCTION The Government urges the Court to stay these cases until the Fourth Circuit and Supreme Court provide guidance on some of the issues that the cases present. The Government claims that a stay could conserve judicial resources because the preliminary-injunction appeals may resolve these cases in their entirety. That will not happen. Plaintiffs have numerous claims that are not even before the appellate courts. Regardless of how the Fourth Circuit and Supreme Court rule on the claims before them, this Court must still decide equal-protection, due-process, free-speech, free-association, and Administrative Procedure Act (“APA”) claims. Moreover, the Fourth Circuit and Supreme Court are unlikely to decide the merits of Plaintiffs’ claims in a preliminary-injunction appeal. And even if the Fourth Circuit or the Supreme Court disagrees with this Court’s view that Plaintiffs are likely to succeed on the merits of their Establishment Clause claims based on the current record, Plaintiffs will have the opportunity to develop even more evidence that the Proclamation was adopted primarily based on anti-Muslim animus, and not on the national-security concerns that the Government has claimed are demonstrated in undisclosed documents, during merits proceedings. The prospect of guidance from an appellate court is also not ordinarily a reason to stay merits litigation. If that were required, every preliminary injunction would stall litigation in the trial court while the losing party took an appeal—a most inefficient means of resolving injunction cases, particularly where precious constitutional rights, and even more valuable family relationships, are at stake. Instead, when a preliminary-injunction ruling is appealed, a case continues to proceed towards final judgment just as it would if the plaintiff had not sought a preliminary injunction. If a defendant wants to stay proceedings while it appeals the preliminary-injunction ruling, it bears a heavy burden to show that the equities favor a stay. The Government has not made this showing.
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The Government attempts to downplay the effects of the requested stay by noting that it will last only a few months until the Fourth Circuit and Supreme Court rule. But forcing Plaintiffs to wait five more months just to begin briefing on a motion to dismiss will cause significant hardship to Plaintiffs. Plaintiffs suffer each additional day that they remain separated from their loved ones. Indeed, for the elderly Plaintiffs and the Plaintiffs whose relatives suffer from life-threatening illnesses, an additional five months of delay, just to start discovery that will likely also take many months, may mean the difference between being reunited with their families and never seeing their loved ones again. The Government cannot identify any harm that it will suffer by beginning discovery now that even remotely compares to the harm that Plaintiffs face.
The Government also speculates that Plaintiffs will seek unreasonably broad discovery. That concern is unfounded. Plaintiffs will begin discovery by requesting only two limited categories of documents: the reports that underlie the Proclamation and documents concerning the waiver process established by the Proclamation. These documents will be relevant to Plaintiffs’ claims no matter how the preliminary-injunction appeals are decided. This initial discovery is critical to determining what, if any, other discovery will be necessary in this case. It will also help advance the case towards a resolution on the merits.
In short, Plaintiffs seek nothing more than to pursue their claims on the schedule provided by the Federal Rules of Civil Procedure, just as any other plaintiff is typically permitted to do. The Government has not offered any compelling reason why Plaintiffs should not be allowed to do so. Given the substantial harm that Plaintiffs would suffer from further delay, and the lack of harm to the Government, the Court should deny the Government’s motion for a stay and grant Plaintiffs’ cross-motion for entry of a scheduling order.
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BACKGROUND Presidential Proclamation 9645 (“Proclamation”)1 is the third order the President has signed in just over a year to ban millions of citizens from Muslim-majority nations from coming to the United States. See generally IAAB ECF No. 46; Zakzok ECF No. 36, at 5–21 (district court findings of fact). The bans fulfill the President’s many promises to ban Muslims from the United States. See id. The first iteration of the ban, 82 Fed. Reg. 8977 (“EO-1”), was swiftly challenged and enjoined. See id. at 8–9. The second iteration of the ban, signed March 6, 2017, reproduced the original in most respects. 82 Fed. Reg. 13209 (“EO-2”). This Court enjoined Section 2(c) of EO-2, and the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, affirmed. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 604–05 (4th Cir. 2017) (en banc), vacated as moot, 138 S. Ct. 353 (Oct. 10, 2017). On September 24, 2017, the President signed the Proclamation, which, like the first two bans, would disproportionately ban Muslims, this time for an indefinite period of time. The individual Plaintiffs in this litigation are U.S. citizens and lawful permanent residents whose relatives—including spouses, parents, and children—are unable to obtain visas while the Proclamation is in effect. See generally IAAB ECF No. 46, Zakzok ECF No. 36, at 21–35. Not only have many of the Plaintiffs been prevented from reuniting with their family members and loved ones, but they also feel “personally attacked, targeted, and disparaged . . . like an outsider in the country” that they call home. E.g., John Doe #6 Decl. ¶ 9, IAAB ECF No. 26-8.
1 Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 82 Fed. Reg. 45161 (Sept. 24, 2017).
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The organizational plaintiffs are social-services organizations and associations of young people with similarly situated members and clients that host events and provide services that the Proclamation has disrupted. See IAAB ECF No. 46, Zakzok ECF No. 36, at 21–35.
Plaintiffs’ complaints allege numerous causes of action, and sought a preliminary injunction of the Proclamation based on certain of these claims—specifically that it violated the Establishment Clause of the First Amendment to the United States Constitution, and that the issuance of the travel ban exceeded the President’s delegated authority under the Immigration and Nationality Act to suspend the entry into the United States of classes of immigrants and nonimmigrants. IAAB v. Trump, No. 17-cv-2921-TDC (D. Md. filed October 2, 2017) (“IAAB”); Zakzok v. Trump, No. 17-cv-2969-TDC (D. Md. filed October 6, 2017) (“Zakzok”). This Court agreed that the Proclamation, like EO-2, likely violates the Establishment Clause, IAAB ECF No. 46, Zakzok ECF No. 36, at 61–84. This Court also held that the Proclamation’s nationality-based ban on the issuance and use of immigrant visas likely violates the INA’s antidiscrimination provision, 8 U.S.C. § 1152(a). Id. at 42–48. The Court accordingly issued a preliminary injunction prohibiting the Government from enforcing Section 2 of the Proclamation.2
The Government appealed the injunction order, and the Fourth Circuit heard oral argument on December 8, 2017. In both the Fourth Circuit and the Ninth Circuit,3 the
2 The preliminary injunction does not cover North Korea and the limited group of Venezuelans subject to the ban. Id. at 89. The Court also limited the injunction’s protection to “those individuals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Id. at 86.
3 In addition to the District of Maryland cases, plaintiffs in several other courts have also sought to challenge the Proclamation. See, e.g., Hawaii v. Trump, No. 17-cv-50 (D. Haw. 2017). On October 17, 2017, the court in Hawaii entered a temporary restraining order against certain sections of the Proclamation, and on October 20, 2017, the Court converted its temporary re-
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Government moved to stay enforcement of the preliminary injunctions pending the appeals. The Ninth Circuit stayed the injunction as to persons without bona fide relationships in the United States. Order Granting Stay in Part, Hawaii v. Trump, No. 17-17168 (9th Cir. Nov. 13, 2017), ECF No. 39.
After the Government requested that the Supreme Court stay the injunctions issued by both the Hawaii district court and this Court, the Supreme Court stayed both injunctions in full pending resolution of the appeals. Trump v. Hawaii, 138 S. Ct. 542 (2017); Trump v. IRAP, 138 S. Ct. 542 (2017). On December 22, 2017, the Ninth Circuit affirmed, in part, the district court’s injunction. Hawaii v. Trump, No. 17-17168, 2017 WL 6554184 (9th Cir. Dec. 22, 2017). The Government filed a petition for certiorari, which the Supreme Court granted on January 19, 2018. Trump v. Hawaii, 583 U.S. ___ (Jan. 19, 2018).4
The Fourth Circuit has not ruled on the appeals in these cases. ARGUMENT
I. These Cases Should Not Be Stayed Pending Appellate Review Of The Preliminary Injunction Rulings In This Case And The Hawaii Case. “Discovery under the Federal Rules of Civil Procedure is broad in scope and freely
permitted.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003). A party must meet a high burden to obtain a stay of discovery, particularly where the
straining order to a preliminary injunction. See Hawaii, ECF Nos. 387, 390. The Government appealed that preliminary injunction as well. See Hawaii, ECF No. 391. 4 The Supreme Court directed the parties to brief and argue the following four questions: 1) whether the challenge to the President’s suspension of entry of aliens is justiciable; 2) whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad; 3) whether the Proclamation violates the Establishment Clause; and 4) whether the global injunction is impermissibly overbroad. See Trump v. Hawaii, 583 U.S. ___ (Jan. 19, 2018).
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party seeks a stay because of the pendency of other litigation. Indeed, “the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). When moving for a stay pursuant to the court’s inherent power to manage its docket, the moving party bears the burden of justifying the stay “by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Williford v. Armstrong World Indust., Inc., 715 F.2d 124, 127 (4th Cir. 1983); Mullins v. Suburban Hosp. Healthcare Sys., Inc., No. 16 Civ. 1113, 2017 WL 3023282, at *1 (D. Md. July 17, 2017) (“A party seeking a stay must demonstrate a pressing need for one and that the need for a stay outweighs any possible harm to the nonmovant.” (citations omitted)).
The Government has not met its burden to obtain a stay. Plaintiffs will suffer substantial and irreparable harm from a stay because the delay in resolving their claims will prolong their separation from family members. The Government, in contrast, will not be harmed by advancing with merits proceedings, which the Government will necessarily have to do regardless of the outcome of the appellate proceedings. The Government complains about the burden of engaging in motions practice and discovery, but those are burdens that defendants must always bear in litigation. And contrary to the Government’s suggestion, further proceedings will be necessary in this Court no matter how the Fourth Circuit and Supreme Court rule. The appellate courts are unlikely to decide the Establishment Clause and statutory claims on the merits in a preliminaryinjunction appeal, but even if they did, this Court would still have to decide Plaintiffs’ numerous other claims that are not part of the current appeals.
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A. The Government Has Not Met Its High Burden To Obtain A Stay. 1. Plaintiffs suffer each day from this unconstitutional policy.
Plaintiffs seek to be reunited with family members from whom they have been separated for months or years. The Government ignores this ongoing harm and instead contends that “plaintiffs will not suffer any prejudice to their ability to conduct discovery.” Def.’s Mot. to Stay at 21, IAAB ECF No. 63, Zakzok ECF No. 51, at 21. But the issue here is not whether Plaintiffs’ ability to conduct discovery will be prejudiced, but whether Plaintiffs will be prejudiced because a stay will delay the ultimate resolution of their claims. Plaintiffs suffer each day that the President’s unconstitutional policy remains in place. By postponing discovery until after the preliminary injunction proceedings are resolved, the Government would necessarily lengthen the litigation process and indefinitely postpone Plaintiffs’ opportunity to obtain a final determination of their claims on the merits and ultimately to reunite with their family members.
Contrary to the Government’s assertions, these delays would be substantial. The Government proposes that these cases be stayed while the Supreme Court decides the Hawaii case, as well as the potential proceedings before the Supreme Court in these cases. Resolving these appeals will likely take at least until the end of June—five months from now.5
As this Court has recognized, a months-long delay during the pendency of appellate proceedings can inflict substantial harm on litigants who are forced to forego the adjudication of their claims. Nero v. Mosby, No. 16 Civ. 1288, 2017 WL 1048259, at *2 (D. Md. Mar. 20, 2017)
5 The Supreme Court will likely hear oral argument in the Hawaii case and issue a decision by the end of June when the current Term ends. See, e.g., Lyle Denniston, “Justices to Rule on Trump Immigration Limits,” LYLE DENNISTON LAW NEWS BLOG (Jan. 19, 2018), http://lyldenlawnews.com/2018/01/19/justices-rule-trump-immigration-limits. Because the Fourth Circuit has not yet ruled, the timing for future appellate proceedings in these cases is unclear. But there is no reason to believe that the appeal in these cases would end before the Supreme Court decides the Hawaii case.
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(refusing to stay discovery during an interlocutory appeal because plaintiffs would “suffer substantial harm” from the “unnecessary delay in their gathering evidence,” regardless of whether that delay would have been for “several months or in excess of a year”); see also Dynport Vaccine Co. v. Lonza Biologics, Inc., No. 14 Civ. 2921, 2015 WL 5768707, at *2 (D. Md. Jan. 10, 2015) (denying a motion to stay while an appeal was resolved in another proceeding because a stay “surely prejudice[s] [the nonmoving party’s] efforts to achieve prompt resolution of the instant case”). While five or six months may not be “an inordinate amount of time” for the Government, Mot. at 22, it would be devastating for many Plaintiffs. Their most intimate and family relationships are threatened with irreparable and fundamental damage by the delay that the Government seeks.
Zakzok Plaintiff Sumaya Hamadmad’s father-in-law, who is in Syria, is eighty-one years old, and has been diagnosed with skin and prostate cancer. Hamadmad Decl. ¶¶ 11–12, Zakzok ECF No. 6-3. Every day that the travel ban remains in effect, Ms. Hamadmad’s children are at increasing risk of never knowing their grandfather. IAAB Plaintiff Jane Doe #5 and her husband are separated from their son, who lives in Iran. Jane Doe #5 Decl. ¶¶ 2, 6, IAAB ECF No. 26-7. Ms. Doe is seventy-nine years old and wheelchair-bound; her husband is ninety. Id. ¶ 6. A matter of months could mean that Ms. Doe and her husband will never again see their son, a fear that causes Ms. Doe great pain every day. Id. ¶ 7.
The Proclamation has torn apart spouses and fiancés, threatening the future of those deeply personal and intimate relationships. Zakzok Plaintiff John Doe #1 is living in the United States alone without his wife, whom he married just weeks before the Proclamation went into effect. Doe #1 Decl. ¶¶ 3, 5, 9, Zakzok ECF No. 6-4. Because of the Proclamation, Mr. Doe and his wife cannot have children, as they planned, and the uncertainty over the future of his
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marriage has caused him to feel stressed, anxious, helpless, and depressed. Id. ¶¶ 9–10. Zakzok Plaintiff Jane Doe #3’s fiancé, a Somali native, cannot join her in the United States because of the Proclamation. Jane Doe #3 Decl. ¶¶ 3, 6, Zakzok ECF No. 6-6. Their separation, and the uncertainty about whether they will ever be able to live together, has placed a strain on their relationship, and she fears that she will never be able to marry or start a family. Id. ¶¶ 4, 7, 8. IAAB Plaintiff Jane Doe #2 feels that she is being forced to choose between the only country she has ever known and the love of her life. Jane Doe #2 Decl. ¶¶ 7–8, IAAB ECF No. 26-5. Other Plaintiffs are suffering similar harms. See, e.g., Jane Doe #1 Decl. ¶¶ 9–10, 13, IAAB ECF No. 26-4.
Numerous Plaintiffs also fear that their family members, who are refugees in other countries, could at any moment be sent back to countries where they would be subject to persecution, torture, or worse, instead of joining their family members safely in the United States. Plaintiff Eblal Zakzok’s daughter, who is currently living in Turkey but has no path to citizenship there, is at risk of being returned to Syria, where her father was persecuted and tortured. Zakzok Decl. ¶ 16, Zakzok ECF No. 6-2. Zakzok Plaintiff Jane Doe #2’s father-in-law is living in Kuwait, but his immigration status depends on his employment, and, as he nears retirement age, he is at risk of being sent back to Syria, where he could be persecuted because of Jane Doe #2 and her husband’s political advocacy for the freedom of the Syrian people. Jane Doe #2 Decl. ¶¶ 19–20, Zakzok ECF No. 6-5. IAAB Plaintiff Jane Doe #1’s husband lives in the United Arab Emirates, where his status is temporary and his residency requires periodic renewal. Jane Doe #1 Decl. ¶¶ 2, 9, IAAB ECF No. 26-4. She fears for his safety should he be deported to Iran, where he would face persecution. Id. ¶ 10.
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The individual plaintiffs also suffer each day from the stigma and disparagement they feel as a result of the Proclamation, which only worsen each day the Proclamation is in effect. They feel that the Proclamation is an attack on their religion and national origins. E.g., Zakzok Decl. ¶ 18, Zakzok ECF No. 6-2. They feel that the United States no longer welcomes them because of their Islamic faith and nationality. E.g., Hamadmad Decl. ¶ 18, Zakzok ECF No. 6-3. They see a rising anti-Muslim sentiment as a result of the Proclamation, and fear for their safety and the safety of their families within the United States. E.g., John Doe # 6 Decl. ¶ 10, IAAB ECF No. 26-8. Indeed, at its summer camps for high-school students, IAAB has had to spend considerable time addressing their campers’ feelings of fear and self-hate. Kharrazi Decl. ¶¶ 9, 12, IAAB ECF No. 26-3.
The Fourth Circuit has emphasized “human aspects of needs” as especially significant harms, and has refused to issue a stay that “would work manifest injustice” against, for example, parties “in declining health,” even where proceeding with the litigation would be inefficient in a number of ways. Williford, 715 F.2d at 127–28. The harms to Plaintiffs here are examples of such manifest injustice. The harm suffered by Plaintiffs is grave and ongoing, and additional harm occurs each day the Proclamation is in effect because of the potential for ill family members to pass away, for important relationships to founder, and for family members stranded abroad to be sent back to dangerous and war-torn countries. Each day the Proclamation is in effect, United States citizens and lawful permanent residents feel unwelcome and unsafe in their homes, cities, and country. The procedural inconvenience that the Government claims it will experience in the absence of a stay pales in comparison to the ongoing harms suffered by Plaintiffs from the operation of a Proclamation that multiple courts have determined is likely unlawful.
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2. The Government does not present a strong case of hardship. The Government contends that Plaintiffs have not “carried their burden of demonstrating why they should be entitled to discovery at this stage.” Mot. at 19. But Plaintiffs have no burden to carry. Like the plaintiff in any other case, Plaintiffs have a right to litigate their claims unless the Government demonstrates that a stay is appropriate. Landis, 299 U.S. at 256. Indeed, the burden of “making out the justice and wisdom of a departure from the beaten track” of continuing proceedings “lay[s] heavily” on the Government. Id. (emphasis added); see also Nken v. Holder, 556 U.S. 418, 433 (2009) (explaining that as “an intrusion into the ordinary processes of administration and judicial review,” a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant”). An interlocutory appeal of a preliminary injunction “does not defeat the power of the trial court to proceed further with the case.” 16 Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3921.2 (3d ed. 1999); see also id. (“Interlocutory injunction appeals would come at high cost if the trial court were required to suspend proceedings pending disposition of the appeal. The delay and disruption alone would be costly. As importantly, cases involving injunctive relief are apt to present an urgent need for action.”). The Government has not made this showing here.
a) Alleged burden and inefficiency of briefing a motion to dismiss The Government attempts to satisfy its heavy burden by focusing on the adversity it would face by having to prematurely brief issues on which the Fourth Circuit or Supreme Court may later offer “dispositive guidance.” See, e.g., Mot. at 8. As a threshold matter, there is little reason to think that the Fourth Circuit or Supreme Court will decide this entire case. See infra Section I.B. That is particularly true here given that many of Plaintiffs’ claims are not part of the preliminary-injunction appeals.
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Further, the Government effectively concedes in its motion that the motion-to-dismiss briefing would not be burdensome: it states that it would “raise . . . the same arguments” it has already twice presented to this and other courts. Mot. at 8 (emphasis added). Proceeding before the Supreme Court issues its decision would not meaningfully burden the Government if significant portions of its motion-to-dismiss brief are already largely written. See Hawaii, 233 F. Supp. 3d 850, 854 (D. Haw. 2017) (considering the government’s motion to stay and declaring: “Why the United States Department of Justice, what some describe as the largest law firm in the world, is not able to litigate similar claims on a mere two fronts without claiming burden is beyond this Court.”).
Nor does a stay meaningfully promote “judicial economy,” as the Government argues, by relieving this Court of the obligation to rule once again on the justiciability issues. The Court has already addressed justiciability in two lengthy, well-reasoned opinions. Mem. Op. 23–40 (Oct. 17, 2017), IAAB ECF No. 46; Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 549–53 (D. Md. 2017). The Government does not claim that it will raise new arguments, nor does it suggest that any intervening decisions should cause this Court to reconsider its prior rulings.6 Given the extensive prior litigation of these questions, the Court should not need to expend significant resources to decide what it previously considered.
The Government’s argument boils down to a preference not to file a motion to dismiss when the Court has already concluded that Plaintiffs are likely to succeed on the merits of their claims. But the Government, of course, can answer the complaint, rather than file a motion that has little chance of success. The arguments the Government might make on a motion to dismiss
6 If anything, the justiciability issues are simpler now because, as the Government concedes, its ripeness argument is no longer relevant given that a relative of IAAB Plaintiff John Doe #6 was denied a waiver under the Proclamation. Mot. at 15.
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could be made later, in a motion for judgment on the pleadings under Rule 12(c), or in a motion for summary judgment, after the preliminary injunction appeals are resolved. See Fed. R. Civ. P. 12(h).7 And the burden on the Government to answer the complaint is not comparable to the substantial harms that the Plaintiffs suffer each day as a result of the delay in deciding their claims.
b) Alleged burden of participating in discovery The Government also objects to the “burden” of participating in discovery. The Government warns that Plaintiffs’ request for discovery could “threaten . . . a collision course” with privileges, Mot. at 18; “lead to significant motions practice regarding the availability and scope of discovery,” id. at 14; “consume significant time and resources,” id. at 14; and be “highly burdensome and intrusive,” id. at 17. In essence, the Government claims that without a stay it would be burdened by having to participate in the normal discovery disputes that arise during the course of litigation. But that hardly justifies a stay. As a preliminary matter, the local rules specifically reject this argument in the ordinary course: “Unless otherwise ordered by the Court, the existence of a discovery dispute as to one (1) matter does not justify delay in taking any other discovery.” D. Md. Local Rule 104.3. Further, “being required to defend a suit, without more, does not constitute a clear case of hardship or inequity within the meaning of Landis.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005) (quotation marks omitted); see also, e.g., Order Denying Motion for Reconsideration, Lam v. City & Cty. of San Francisco, No. 10 Civ. 4641 (N.D. Cal. July 22,
7 The government’s reliance on In re United States, 138 S. Ct. 443 (2017), is unavailing. There, the Supreme Court instructed the district court to consider the government’s reviewability and jurisdictional arguments before ordering it to complete the administrative record. Id. at 445. This Court has already considered and decided the Government’s reviewability arguments twice.
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2015), ECF No. 130 (“The only ‘injury’ that would result from denial of a stay would be the requirement of plaintiffs’ participation in the discovery process.”); see also Nero v. Mosby, No. CV 16-1304, 2017 WL 1048259, at *2 (D. Md. Mar. 20, 2017) (rejecting the argument that discovery against a public official should have been stayed because a potential immunity defense would have rendered the discovery “unnecessary” or injurious and explaining that “a right to immunity is not a right to be free from litigation in general” (internal quotation marks and citations omitted)); Geiser v. Simplicity, Inc., No. 10 Civ. 21, 2011 WL 128776, at *4 (N.D. W. Va. Jan. 14, 2011) (“Discovery should only be stayed . . . where there are no factual issues in need of further immediate exploration and the issues before the court are purely questions of law.” (internal quotation marks and citation omitted)). Indeed, the fact that this process could be lengthy and involve complicated issues is a reason for discovery to proceed now, so that the parties can get started on the process, their time and resources are not drained by dragging out the litigation, and Plaintiffs are spared the additional harm that will come with each day of delay.
The Government also suggests that if the Court were to permit discovery to proceed in the normal course, the Government would be powerless to protect itself from overreaching, abusive, or harassing discovery requests. But the discovery process is designed to offer an opportunity for parties to develop their claims while preserving the rights of opposing parties to object. See, e.g., Fed. R. Civ. P. 34(b)(2) (objections); Fed. R. Civ. P. 26(c) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including by prohibiting or limiting the discovery); D. Md. Local Rules 104.1 (limitation on requests), 104.8(a) (minimizing briefing on motions to compel), 104.13 (regarding confidentiality orders). That disputes may arise is not a reason to
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deny Plaintiffs the opportunity to request discovery materials to develop evidence in support of their claims.
Plaintiffs do not deny that there may be disputes about discovery requiring the time and attention of the parties. But to the extent that there will be privilege and other disputes, it would be more efficient for the parties to begin the process of serving requests and negotiating the scope of discovery now. “Any decision in the Court of Appeals on the preliminary injunction will by definition be preliminary so far as the merits are concerned. It is an appropriate use of judicial resources (and those of the parties) to proceed with the actual merits so as to obtain a final resolution.” Pharm. Care Mgmt. Ass’n v. Maine Attorney Gen., 332 F. Supp. 2d 258, 260 (D. Me. 2004) (declining the government’s motion to stay pending appeal of a preliminary injunction); see also Cognate BioServices, Inc. v. Smith, No. 13 Civ. 1797, 2015 WL 5673067, at *5 (D. Md. Sept. 23, 2015) (expressing concern that granting a stay of discovery would “hinder [the plaintiff’s] ability to bring its claims against [the defendants] to a disposition” and granting a stay of discovery only on the “limited basis” that “much of the discovery already conducted by the parties would likely be conducted again”); Fed. Ins. Co. v. S. Lithoplate, Inc., No. 12 Civ. 793, 2013 WL 4045924, at *1 (E.D.N.C. Aug. 8, 2013) (concluding that granting motions to stay discovery “are generally disfavored because delaying discovery may cause case management problems as the case progresses”). For example, Plaintiffs understand that it will be necessary to negotiate a protective order in this case before the production of documents or other discovery; this process alone will likely take time and should begin immediately.
c) Alleged burden as to anticipated scope of discovery Finally, as part of its strained effort to make out a claim of hardship, the Government urges the Court to assume that Plaintiffs “will seek extremely broad discovery on a variety of topics.” Mot. at 16. That argument is speculative and premature, and as explained below,
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incorrect. See, e.g., DKS Inc. v. Corp. Bus. Sols., Inc., No. 15 Civ. 132, 2015 WL 6951281, at *2 (E.D. Cal. Nov. 10, 2015) (denying the defendant’s motion to stay pending an appeal and finding that the defendant’s “conclusory contention that Plaintiff has made ‘crippling demands for voluminous discovery’ is not enough to make a strong showing of irreparable harm”); Wise v. Pine Tree Villa, LLC, No. 14 Civ. 517, 2015 WL 1109006, at *2 (W.D. Ky. Mar. 11, 2015) (denying a motion to stay discovery, in part, because the “[d]efendant’s concerns about voluminous discovery [were] speculative at th[at] early stage of the litigation”); Chamber of Commerce v. Servin, No. 09 Civ. 2014, 2011 WL 871735, at *1 (D.D.C. Mar. 11, 2011) (denying a motion to stay discovery as “premature” in part because the parties had not yet “conferred about the discovery that is necessary”); Actividentity Corp. v. Intercede Grp. PLC, No. 08 Civ. 4577, 2009 WL 10691373, at *2 (N.D. Cal. Dec. 30, 2009) (describing as “premature” the defendant’s “judicial economy” arguments and stating that a “concern for the burden of . . . discovery, while perhaps practical, cannot alone form the basis for a decision to stay discovery”); cf. Citifinancial, Inc. v. Lightner, No. 06 Civ. 145, 2007 WL 3088087, at *2 (N.D. W. Va. Oct. 22, 2007) (considering defendant’s argument that denying a motion to stay a remand pending an appeal would cause financial outlay and inconvenient strategy changes and ultimately characterizing it as “too remote and speculative” and “hypothetical and attenuated” to establish that participating in discovery would cause harm).
The Government’s arguments are also unfounded. Plaintiffs have prosecuted their cases efficiently in all stages of the proceedings so far, including by coordinating among the various plaintiff groups to submit consolidated briefs in order to minimize the burden on the Government and the Court. There is no basis to assert that Plaintiffs will begin to abuse the litigation process
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now. In any event, Plaintiffs’ initial discovery requests, see infra Section II.B., are narrowly tailored.
3. The Court’s stay of proceedings for EO-2 does not support a stay of proceedings here.
The Government‘s reliance on stays granted during the litigation involving EO-1 and EO2 is misplaced. The courts that granted stays in those cases did so while a nationwide injunction was in place. Most of those courts explicitly acknowledged the injunction in their decisions and reasoned that, unlike here, the plaintiffs would not suffer prejudice if a stay of proceedings were granted. See, e.g., Washington v. Trump, No. 17 Civ. 0141, 2017 WL 2172020, at *1 (W.D. Wash. May 17, 2017) (“[T]he court entered a stay . . . in part because the federal district court in Hawaii entered a nationwide injunction that provided Plaintiffs with the relief they sought.”); Hawaii, 233 F. Supp. 3d at 853 (“[T]he Western District of Washington’s nationwide injunction already provides the State with the comprehensive relief it seeks in this lawsuit.”); Arab Am. Civil Rights League v. Trump, No. 17 Civ. 10310, 2017 WL 2501060, at *2 (E.D. Mich.) (June 9, 2017) (“Regardless of the length of stay, because the Fourth Circuit upheld the nationwide injunction of the Executive Order, Plaintiffs’ interests are protected.”). Here, the Proclamation has gone into effect; Plaintiffs are suffering; and a stay would cause irreparable injury.
The Government’s reliance on the previous stays with respect to EO-2 is also misplaced because EO-2 was a temporary ban, see EO-2 § 2(c), whereas the Proclamation is indefinite. Until the Fourth Circuit and Supreme Court issue decisions, the Proclamation will continue to separate family members from their loved ones. The indefinite nature of the Proclamation and lack of a nationwide injunction counsel in favor of denying the Government’s requested stay.
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B. The Preliminary Injunction Appeal Will Not Conclusively Decide This Case. The Government contends that the entire case should be stayed because “[t]here is at least a significant possibility . . . that no further proceedings will be necessary after the preliminaryinjunction appeals are resolved.” Mot. at 11. That is incorrect. The issue before the Supreme Court is the appropriateness of the preliminary injunction, not a review of the merits with a fully developed factual record. For a preliminary injunction, plaintiffs must “establish that [they are] likely to succeed on the merits.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (emphasis added). A preliminary injunction is designed “merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added); see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 671-72 (2004) (upholding a preliminary injunction and remanding for trial, noting that the Court would not “usurp the District Court’s factfinding role” where there were “substantial factual disputes remaining in the case”). A preliminary injunction is not designed to obviate discovery and adjudication on the merits. Since a final decision on the merits was not made in the district court, the Supreme Court is unlikely to decide the issues before it in a way that precludes litigation of Plaintiffs’ Establishment Clause and statutory claims on the merits. But even if it did, this Court would still need to decide the claims that are not part of the preliminary injunction appeal.
1. The argument that the Supreme Court will decide the preliminaryinjunction appeal on the merits is speculative.
The Government contends that further proceedings in this Court may become unnecessary because the Supreme Court may decide the merits of Plaintiffs’ claims. Mot. at 11. Tellingly, in the majority of the cases on which the Government relies, a court stayed proceedings where the anticipated decision in the other litigation is on the merits, not an
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interlocutory appeal of preliminary relief or a similar situation. See Mot. at 7–8 (Amdur v. Lizars, 372 F.2d 103, 106 (4th Cir. 1967) (state court case on same issues with same parties); Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987) (table) (parallel case on same issue); Preston v. United States, No. 14 Civ. 1920, 2015 WL 221633, at *9 (D. Md. Jan. 15, 2015) (same); In re Mut. Funds Inv. Litig., No. 04 MD 15863, 2011 WL 1540134, at *2 (D. Md. Apr. 20, 2011) (stayed pending decision on liability of parties in securities fraud actions).
The Government relies on two cases that it claims demonstrate the Supreme Court’s willingness to “resolve the merits of the legal claims with little attention paid to the preliminary nature of the case.” Mot. at 11 (citing Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Arizona v. United States, 567 U.S. 387 (2012)). While Burwell and Arizona were decided on the merits at the preliminary injunction stage, that is not the Supreme Court’s usual practice. See, e.g., Ashcroft, 542 U.S. at 673 (“This opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government’s constitutional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Congress’ goal.”); Camenisch, 451 U.S. at 395 (finding that although the preliminary injunction had been mooted, the district court still needed to decide merits of the case); Doran v. Salem Inn, Inc., 422 U.S. 922, 934 (1975) (“[W]e cannot conclude that the District Court abused its discretion by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we therefore intimate no view as to the ultimate merits of (respondents) contentions.” (internal citations omitted)); Brown v. Chote, 411 U.S. 452, 457 (1973) (affirming a preliminary injunction but adding that “we intimate no view as to the ultimate merits of appellee’s contentions.”).
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Burwell and Arizona were decided based solely on statutory interpretations, whereas the issues here also turn on questions of fact. In particular, as this Court’s analysis demonstrates, Plaintiffs’ Establishment Clause claims depend, among other things, on evidence that the Proclamation was adopted based on anti-Muslim animus and that the purported national-security interests were pretextual or secondary. Op. at 74–84, IAAB ECF No. 46, Zakzok ECF No. 36. Even if the Supreme Court holds that the Hawaii plaintiffs did not sufficiently show that the Proclamation’s primary purpose was anti-Muslim animus, it would not necessarily mean that Plaintiffs here could not make this showing on a full record. Nor would it preclude Plaintiffs from offering additional evidence of anti-Muslim animus and pretext when the claim is adjudicated on the merits. Likewise, Plaintiffs’ statutory claims also depend on the factual record—for example, whether the President made the requisite “findings” under Section 1182(f). See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 606 (4th Cir. 2017) (Keenan, J., concurring) (finding that injunctive relief was appropriate because “the INA nevertheless is supported by the failure of Section 2(c) to satisfy the threshold requirement of Section 1182(f) for the President’s lawful exercise of authority”).
The Government’s arguments regarding Kleindienst v. Mandel, 408 U.S. 753 (1972), do not change the analysis. This Court properly relied on the concurring opinion in Kerry v. Din, 135 S. Ct. 2128 (2015), to hold that Plaintiffs’ evidence that the Proclamation was adopted in bad faith was sufficient to satisfy Mandel. Op. at 63, IAAB ECF No. 46, Zakzok ECF No. 36. The Government disagrees that the Mandel test permits a court to consider evidence of bad faith, arguing instead that it mandates “rational-basis review.” Opp. to Prelim. Inj. Mot at 36, IAAB ECF No. 36, Zakzok ECF No. 20 (citing Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017)). But even if the Government is correct on this point, Plaintiffs could still litigate their
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constitutional claims under rational basis review. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448–50 (1985) (striking down law on rational-basis review where “the record does not reveal any rational basis” for the law, which instead “appear[ed] to rest on an irrational prejudice”).8 Plaintiffs can demonstrate that the Proclamation is not rationally related to its stated goal of national security, and that it fails other constitutional tests. Indeed, Plaintiffs already have evidence to support this allegation—see, e.g., Brief of Former National Security Officials as Amici Curiae in Support of Plaintiffs, IRAP ECF No. 123-1—and discovery will likely produce more such evidence.
2. Plaintiffs have claims that are not before appellate courts. Even if the Supreme Court decided the merits of the claims before it, further proceedings in this Court will still be necessary because some of Plaintiffs’ claims are not before either the Supreme Court or the Fourth Circuit as part of the preliminary injunction appeal. See IAAB First Am. Compl. ¶¶ 91–94 (free-speech claim); Id. ¶¶ 95–101 (equal-protection claim); Id. ¶¶ 102–07 (due-process claim); Id. ¶¶ 113–16 (free-association claim). Nor will the Supreme Court decide all of Plaintiffs’ APA claims. See, e.g., Zakzok Compl. ¶¶ 128–34 (procedural violation of APA); IAAB First Am. Compl. ¶¶ 108–12 (same). Because the appellate courts will not decide these claims, there is no reason to delay litigating them. In short, these cases should not be stayed pending resolution of the preliminaryinjunction appeals because neither the Fourth Circuit’s nor the Supreme Court’s decision will conclusively decide this case. The Supreme Court is unlikely to decide the claims before it on
8 The Government broadly asserts that “no discovery is appropriate” until the Supreme Court has had the opportunity to consider Mandel’s application here. Mot. at 12–13. But even if the Supreme Court were to agree with the Government, the Mandel framework would not govern all of Plaintiffs’ claims, which overlap in terms of scope of discovery; therefore the pending appeal on this issue does not justify a stay.
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the merits, and it certainly will not decide claims that are not before it. Because further proceedings will be necessary no matter how the Supreme Court rules, those proceedings should begin now. II. The Parties Should Immediately Begin The Discovery That Will Be Necessary
Regardless Of The Supreme Court’s and Fourth Circuit’s Rulings. A. The Government’s Desire To Wait Before Filing A Motion To Dismiss Ignores
That Discovery Need Not Wait Until The Court Rules On The Government’s Motion. Under the Federal Rules of Civil Procedure, a party can serve discovery requests beginning 21 days after the summons and complaint are served, or at a Rule 16(b) conference if later than 21 days after the summons and complaint are served. See Fed. R. Civ. P. 26(d). “The purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Fed. R. Civ. P. 26 advisory committee’s note to 1983 amendment. Further, the Fourth Circuit has declared that “[d]iscovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” Carefirst of Md., Inc., 334 F.3d at 402. The filing of a motion to dismiss has no effect on the period for requesting discovery. See Fed. R. Civ. P. 12(a)(4) (addressing effect of filing a motion to dismiss without suspending discovery rules). As discussed above, a significant portion of the Government’s motion focuses on the burden of having to brief a motion to dismiss before the Supreme Court and Fourth Circuit decide the appeals of the preliminary injunction. The Government argues that “moving forward with merits proceedings at this stage would be highly inefficient and burdensome. If the cases were to move forward, the next step would be for the Government to move to dismiss the complaints.” Mot. at 1. But the request that Plaintiffs made to the Court that prompted this motion was for the entry of a scheduling order so that the parties can begin discovery. See IAAB ECF No. 58; Zakzok ECF No. 46. Although courts sometimes stay discovery during the
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pendency of a motion to dismiss, this is not the default rule under the Federal Rules of Civil Procedure, and the Rules do not link the briefing of a motion to dismiss with the period for discovery. Nor, as noted above, is the Government required to file a motion to dismiss at this juncture; it would be a simple matter for the Government to answer the complaint, if it does not want to file such a motion.
B. Plaintiffs’ Initial Requests Will Not Be Burdensome And Will Seek Discovery That Will Be Necessary Regardless Of The Appellate Rulings.
The Government contends that discovery should wait until after the Supreme Court has ruled on the preliminary injunction because the Supreme Court’s ruling could provide guidance that could affect discovery. Mot. at 7-12. This Court would be well within its discretion to permit discovery to proceed in the ordinary course. But given that the Supreme Court is likely to rule before discovery could be completed in this case, Plaintiffs are willing to begin with discovery on topics that would pose little burden on the Government and will be necessary no matter how the Supreme Court rules. As discussed below, Plaintiffs have identified three such areas: (1) reports underlying the Proclamation; (2) implementation of the waiver process under the Proclamation; and (3) the Government’s discovery regarding Plaintiffs’ injuries.
1. Reports (with attachments) Plaintiffs would request (1) the report, identified in Section 1(c) of the Proclamation, that the Secretary of Homeland Security submitted to the President on July 9, 2017 (the “July Report”); (2) the report, identified in Section 1(h) of the Proclamation, that the Acting Secretary of Homeland Security submitted to the President on September 15, 2017 (the “September Report”); and (3) any attachments or appendices associated with either of those reports. This exceedingly small set of documents is indisputably relevant, as the Government
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has made clear by its repeated reliance on them in these proceedings. Hence, they are a crucial starting point for litigating this action and determining what other discovery is needed.
Plaintiffs will seek discovery of the reports because they are the cornerstone of the Government’s defense to this action. Most obviously, the Government relies upon the September Report as a defense to Plaintiffs’ Establishment Clause claims. It argues that the Proclamation’s purpose is wholly separate from EO-2’s unconstitutional religious purpose because “the Proclamation was based on recommendations of the Acting Secretary of DHS”— i.e., the September Report. IAAB ECF No. 36, at 42. The Government also uses the reports to defend against Plaintiffs’ claim under the INA that the President failed to make adequate findings that banning nationals of the designated majority-Muslim countries is in the national interest, see, e.g., IRAP ECF No. 205, at 17–18, asserting that the President provided plenty of “detail and explanation for his findings”—“[s]pecifically, [that] the President imposed the entry restrictions after reviewing the recommendations of the Acting Secretary of DHS” in the September Report, and that those “recommendations were created following a worldwide review that evaluated every country according to neutral criteria” set forth in the July Report, IAAB ECF No. 36, at 22. And the Government contends that the “recommendations of the Acting Secretary of DHS” (i.e., the September Report) provide a “bona fide basis” for the ban such that the Proclamation should be unreviewable under Mandel. See id. at 36. None of these arguments can be resolved in the Government’s favor by the mere existence of the reports; it is the actual content—and whether that content supports the Proclamation—that matters.
Producing the reports will not be burdensome because the Government must produce them soon in FOIA litigation. See Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of State, No. 17 Civ. 7520, 2018 WL 369783, at *8 (S.D.N.Y. Jan. 10, 2018). In that case,
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the district court ordered the Government to produce the reports, four accompanying attachments, and a Vaughn index for anything not produced, by February 9, 2018. Id. The Government can hardly object to making the same production in this case that it must make in another case.
The Government contends, however, that Plaintiffs may not seek discovery of the reports because they have already conceded that the reports are irrelevant to their claims. Mot. at 16–17. The Government bases this argument on a statement by IRAP’s counsel during the preliminary injunction hearing that the Court did not “need . . . to look at the report” to rule for Plaintiffs. Id. But the assertion that the record was already sufficient to grant Plaintiffs’ preliminary injunction does not negate the report’s overall relevance to the merits of this case.
Indeed, in Establishment Clause cases, evidence of impermissible purpose is not limited solely to the public record. What matters is the Government’s actual purpose. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 585 (1987). The Supreme Court was warned against “judicial psychoanalysis of a drafter’s heart of hearts,” McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 862 (2005), but discovering and reviewing concrete, objective evidence of governmental purpose is not judicial psychoanalysis. It is the ordinary and prescribed form of judicial inquiry. Indeed, in McCreary itself, “[a]fter the Supreme Court issued its opinion, the case returned to the district court for further proceedings,” in which the plaintiffs took “discovery as to the factual details and motivation for the sequence of the [challenged] displays.” ACLU of Ky. v. McCreary County, 607 F.3d 439, 443–44 (6th Cir. 2010) (emphasis added); see also Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 560 (10th Cir. 1997) (although “examination must stop short of an attempt to discern a defendant’s psychological motives vis à vis his past conduct, underlying belief system or religious character,” it is entirely proper to “focus . . . on objectively
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discernible conduct or communication that is temporally connected to the challenged activity and manifests a subjective intent by the defendant to favor . . . a particular religious belief”).
In any event, Plaintiffs would be able to seek discovery of the reports even if they could not be considered under the reasonable-objective-observer test. That test is but one of many that Plaintiffs can use to demonstrate that the Proclamation violates the Establishment Clause. See, e.g., Mellen v. Bunting, 327 F.3d 355, 370–75 (4th Cir. 2003) (reviewing governmental action under several Establishment Clause tests). For example, Plaintiffs’ allegation of official disfavor toward Muslims, see IAAB First Am. Compl. ¶¶ 84–89, is a claim of denominational preference, which receives “strict scrutiny” under Larson v. Valente, 456 U.S. 228, 246 (1982). Discovery of the July and September Reports will thus be relevant in determining, under Larson, whether the Proclamation “is closely fitted to further [a compelling governmental] interest.” Id. at 247.
The reports are also relevant to Plaintiffs’ other claims and therefore the proper subject of discovery. As discussed above, the reports are relevant to the Government’s assertion that the President made a proper finding under Section 1182(f) in order to justify the Proclamation. The Government’s equivocation at oral argument regarding the consistency between the report and the Proclamation casts doubt on that defense. See Prelim. Inj. Hr’g Tr. at 48–52. Moreover, the report is relevant to Plaintiffs’ claims that are not the subject of the preliminary-injunction proceedings. Discovery of governmental records such as the July and September Reports will clearly be relevant to Plaintiffs’ Equal Protection claims, which require the Court to decide questions of “discriminatory intent or purpose” by reviewing the “administrative history” and “the specific sequence of events leading up [to] the challenged decision.” Vil. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–68 (1977).
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Plaintiffs anticipate that the Government will assert that portions of these documents are classified or privileged. See, e.g., Prelim. Inj. Hr’g Tr. at 48 (“[T]he [September] report actually contains a lot of classified information.”). But the Government has implicitly conceded that not all the contents are classified. See, e.g., id.; Proclamation § 2(h)(i) (describing contents of September Report). As discussed above, the Government has already been ordered in FOIA litigation to produce these documents and to identify which portions cannot be produced. See Brennan Ctr, 2018 WL 369783, at *8. The Government should be able to identify and assert any claims of privilege here with little or no additional effort. Plaintiffs would then get the benefit of the reports to the extent that they can be produced immediately, and this Court will then be able to resolve any questions of privilege while appellate proceedings on the preliminary injunction are pending, thus allowing the parties to proceed with this litigation without unnecessary delay once those proceedings have concluded.
2. Implementation of the waiver The Proclamation created a waiver process that promises to provide a determination “on a case-by-case basis” of whether a person subject to the travel ban should nevertheless be allowed to enter the United States. Proclamation § 3(c). A waiver may be granted only where (1) “denying entry would cause the foreign national undue hardship;” (2) “entry would not pose a threat to the national security or public safety of the United States;” and (3) “entry would be in the national interest.” Id. The Proclamation instructs the Secretary of State and the Secretary of Homeland Security “to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” Id. Plaintiffs seek discovery regarding the implementation of this waiver process. The Government has asserted that “[t]he Proclamation also provides for case-by-case waivers” as evidence that “[n]either the Proclamation’s text nor its operation evidence an intent to exclude
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Muslims.” Opp. to Prelim. Inj. at 40. But Plaintiffs have reason to believe that the waiver process is not operating as set forth in the Proclamation, which is inconsistent with the Government’s asserted defense. Despite the Proclamation’s instructions, no guidance has been publicly released, which means that visa applicants and their U.S. relatives have no way to know how applicants may apply for a waiver, how determinations regarding waiver eligibility are made and by whom, and whether there is any recourse for persons denied a waiver.
IAAB Plaintiff John Doe #6 provides a good example. In December 2017, his mother-inlaw received a form letter from the U.S. Consulate signed by the “Nonimmigrant Visa Unit,” informing her that “a consular official found [her] ineligible for a visa under Section 212(f) of Immigration and Nationality Act, pursuant to Presidential Proclamation 9645” and that “[t]aking into account the provisions of the Proclamation, a waiver will not be granted in [her] case.” See Decl. of Sirine Shebaya, Ex. A. But John Doe #6’s mother was never given an opportunity to apply for a waiver or demonstrate that she meets the criteria set forth in the waiver provision of the Proclamation before receiving this blanket denial of both her visa application and a waiver.
Plaintiffs’ initial discovery requests will seek records created on or after September 24, 2017—the date the Proclamation was issued—of practices, policies, guidance, and procedures addressing how consular officers should evaluate visa applications from nationals of the affected countries and how they are to determine whether waiver requests will be granted, including how to determine whether an individual’s entry “would cause . . . undue hardship,” “would not pose a threat to the national security or public safety of the United States,” and “would be in the national interest.” Proclamation § 3(c).
These requests are relevant to Plaintiffs’ claims and not burdensome. The documents are relevant because the Government has relied on the waiver provisions to argue that the
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Proclamation is not based on anti-Muslim animus. Evidence about the Government’s waiver
process policies could therefore undermine the Government’s asserted defense to Plaintiffs’
Establishment Clause and Equal Protection claims. And the requests are not burdensome
because the relevant time period is narrow and Plaintiffs seek the same types of documents that
government agencies must include in the administrative record in virtually all APA litigation.
See 5 U.S.C. § 557(c)(3)(A); Doolin Sec. Sav. Bank, F.S.B. v. F.D.I.C., 53 F.3d 1395, 1409 (4th
Cir. 1995).
C. The Parties Will Need Time To Negotiate A Protective Order If The Government Takes Discovery.
Finally, to the extent that the Government intends to take discovery from Plaintiffs, that
process too should begin immediately so that there is time to negotiate a protective order related
to the use and production of such information. In litigation involving EO-2, the Government
argued that the previous version of the travel ban should be upheld without any discovery on any
issue. See, e.g., Joint Rule 26(f) Discovery Plan at 6, Arab Am. Civil Rights League v. Trump,
No. 17-10310 (E.D. Mich.) (July 6, 2017), ECF No. 115. But the Government also sought to
“reserve the right” to seek discovery of the plaintiffs’ injuries if discovery were permitted. Id. at
7. The Government stated that:
Discovery into Plaintiffs’ claimed injuries may include topics such as: communications between the individual Plaintiffs and family members seeking entry into the United States, visa application status for and location of those family members, documents relating to visa petitions or applications, membership information of the organizational Plaintiffs, financial information regarding the organizational Plaintiffs, and any information regarding the organizational Plaintiffs’ alleged planned conferences or speakers. Id. Unless the Government agrees to forgo such discovery in these cases, a protective order
will be necessary for several reasons related to the sensitivity of such information, including that 29

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some Plaintiffs have been granted leave to proceed under pseudonym. Plaintiffs will of course

cooperate in reasonable requests for discovery by the Government.

CONCLUSION Plaintiffs’ motion for entry of a scheduling order should be granted, and the

Government’s motion to stay should be denied.

Dated: February 2, 2018

Respectfully submitted,

Johnathan Smith* Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild* Andrew Nellis*^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 20005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

___________/s/_________ Marianne F. Kies (Bar # 18606) Mark H. Lynch (Bar # 12560) Mark W. Mosier* José E. Arvelo* John W. Sorrenti* COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mkies@cov.com mlynch@cov.com mmosier@cov.com jarvelo@cov.com jsorrenti@cov.com
Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

Counsel for IAAB Plaintiffs

[additional counsel on next page]

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Faiza Patel* Michael Price* Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 Tel.: (646) 292-8335 Fax: (212) 463-7308 faiza.patel@nyu.com michael.price@nyu.com
Jethro Eisenstein* Profeta & Eisenstein 45 Broadway, Suite 2200 New York, New York 10006 Tel.: (212) 577-6500 Fax: (212) 577-6702 jethro19@gmail.com
Lena F. Masri* Gadeir Abbas* Council on American-Islamic Relations (CAIR) 453 New Jersey Avenue SE Washington, D.C. 20003 Tel.: (202) 488-8787 Fax: (202) 488-0833 lmasri@cair.com gabbas@cair.com

___________/s/_________ Charles E. Davidow (Bar # 06516) Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street NW Washington, DC 20006-1047 Tel.: (202) 223-7300 Fax: (202) 223-7420 cdavidow@paulweiss.com
Robert A. Atkins* Liza Velazquez * Andrew J. Ehrlich* Steven C. Herzog* Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel.: (212) 373-3000 Fax: (212) 757-3990 ratkins@paulweiss.com lvelazquez@paulweiss.com aehrlich@paulweiss.com sherzog@paulweiss.com
Counsel for Zakzok Plaintiffs

* Pro hac vice. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

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 Case 8:17-cv-02921-TDC Document 66 Filed 02/09/18 Page 1 of 31

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION ____________________________________

)

IRANIAN ALLIANCES ACROSS

)

BORDERS, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 8:17-cv-02921-TDC

)

DONALD J. TRUMP, in his official

)

capacity as President of the United

)

States, et al.,

)

)

Defendants.

)

____________________________________)

)

EBLAL ZAKZOK, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02969-TDC

)

DONALD TRUMP, in his official capacity )

as President of the United States, et al., ) )

Defendants.

)

____________________________________)

DEFENDANTS’ COMBINED REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO STAY, AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A SCHEDULING ORDER

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I. Plaintiffs Do Not Meaningfully Dispute that the Fourth Circuit and Supreme Court Decisions Will Provide Important Guidance Governing These Cases ............................... 3
A. Plaintiffs Cannot Escape the Overwhelming Authority from Prior Rounds of Litigation Demonstrating that Stays Are Appropriate ........................................ 4
B. A Stay Is Amply Justified Given that Any Merits Proceedings Will Likely Need to Be Re-Evaluated Once the Appellate Decisions Are Issued ..................... 7
C. The Appellate Decisions Will Likely Resolve These Cases Entirely Or, At a Minimum, Will Provide Critical Guidance on Key Legal issues.......................... 10
II. Plaintiffs’ Arguments Regarding Harms Do Not Support Moving Forward with Merits Proceedings Now................................................................................................... 13
A. The Supreme Court’s Stay Decision Does Not Warrant Moving Forward In a Wasteful or Inefficient Manner .......................................................................... 13
B. Allowing Merits Proceedings Now is Unlikely to Bring These Cases Closer to Final Resolution ................................................................................................ 14
III. At A Minimum, the Court Should Reject Plaintiffs’ Request to Begin Discovery, Which Plaintiffs Have Now Confirmed Will Be Extremely Burdensome........................ 16
A. The Pendency of a Dispositive Motion to Dismiss Would Independently Justify a Stay of Discovery ................................................................................... 17
B. Plaintiffs’ Filing Confirms that Discovery Would Be Highly Burdensome.......... 18 C. The Particular Discovery Proposed by Plaintiffs Would Be Significantly
Burdensome and Require this Court to Confront Sensitive Issues ....................... 20 1. The Underlying Reports Are Irrelevant, Classified, and Privileged ......... 20 2. Plaintiffs Have No Basis for Seeking Information Related to
Implementation of the Proclamation’s Waiver System ............................. 25 CONCLUSION............................................................................................................................. 29
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INTRODUCTION Plaintiffs’ response to the Government’s motion to stay does not dispute two key points, each of which independently underscores that a stay of further merits proceedings is justified here. First, Plaintiffs concede that the Supreme Court has now granted certiorari over, and thus will likely decide within a matter of months, many of the critical legal questions governing these cases. See Pls.’ Br. (IAAB ECF No. 65, Zakzok ECF No. 53) at 5-7 & nn.4-5. Second, Plaintiffs admit that allowing discovery to proceed would result in significant disputes between the parties, involving “complicated issues” and a process that “could be lengthy[.]” Id. at 14. These points thus demonstrate why a stay pending resolution of the ongoing appellate proceedings is the most prudent course here: It simply makes no sense to move forward with motion-to-dismiss briefing (let alone burdensome discovery proceedings) while awaiting forthcoming, binding guidance from the appellate courts. There is a reasonable probability that the ongoing appellate proceedings will entirely resolve these cases, meaning that any merits proceedings conducted in the interim would be entirely for naught. At a minimum, the forthcoming appellate decisions will clarify the legal framework governing Plaintiffs’ claims, and therefore any merits issues briefed or decided in the interim would likely need to be re-litigated once the appeals are decided, to ensure consistency between this Court’s prior rulings and the framework announced by the appellate courts. Thus, there is little to gain by moving forward now, but there is certainly much to lose—i.e., significant wastes of time and resources, for both the parties and the Court, in litigating and deciding complicated and sensitive issues that may ultimately prove unnecessary. Plaintiffs try to avoid this logic by instead focusing on the purported harms they will suffer as a result of the Proclamation’s ongoing enforcement. See Pls.’ Br. at 7-10. As the Government explained in its opening memorandum, however, those harms are the exact same ones that the Supreme Court already considered—and rejected—in deciding what the status quo should be while
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the ongoing appellate proceedings conclude. See Gov’t’s Br. (IAAB ECF No. 63-1, Zakzok ECF No. 51-1) at 22. Nothing about the Supreme Court’s stay decision requires this Court to structure its proceedings in an inefficient or wasteful manner. Indeed, the Supreme Court’s stay decision also underscores that a stay is appropriate here: The governing legal framework remains unsettled, and the Supreme Court itself is moving with great speed to decide key issues; even Plaintiffs predict that the Supreme Court will issue its decision within a few months after briefing on this motion to stay concludes (i.e., by the end of June). See Pls.’ Br. at 7 n.5.
It is far more sensible to wait those few months before moving forward with any merits proceedings, particularly given that those merits proceedings—i.e., the filing of a motion to dismiss and/or litigating discovery issues—would not themselves redress Plaintiffs’ purported harms of family separation. Plaintiffs’ argument is thus based on the assumption that beginning merits proceedings now would save time in the long-run, whereas granting a stay would “delay the ultimate resolution of their claims.” Pls.’ Br. at 7. But that assumption is unfounded for the reasons discussed above: any merits issues briefed or decided prior to the appellate courts’ decisions would likely need to be re-litigated to ensure consistency with the subsequent appellate decisions. Thus, it is far from clear that granting a stay would, in fact, “necessarily lengthen the litigation process[.]” Id.
Finally, Plaintiffs’ filing attempts to justify their requests for discovery by setting forth two particular categories of records and stating that “Plaintiffs are willing to begin with discovery on [those] topics[.]” Id. at 23. But those particular categories again only demonstrate the tremendous burdens that Plaintiffs seek to impose on the parties and this Court—i.e., significant motions practice requiring the parties to litigate, and this Court to decide, numerous sensitive legal issues about whether such discovery is appropriate and, even if so, whether the documents are privileged
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or afforded other confidentiality protections. Even were the Court not inclined to grant a complete stay of proceedings, therefore, at a minimum the Court should stay Plaintiffs’ requests to begin discovery.
In short, and as discussed further below, a stay is amply warranted here because it is the most efficient way to proceed; it would not impose any cognizable prejudice on Plaintiffs; and Plaintiffs’ requested discovery only confirms the significant burdens that allowing discovery would impose on both the parties and the Court. This Court should therefore grant the Government’s motion to stay proceedings pending resolution of the preliminary-injunction appeals, and should deny Plaintiffs’ cross-motion for entry of a scheduling order.
ARGUMENT I. Plaintiffs Do Not Meaningfully Dispute that the Fourth Circuit and Supreme Court
Decisions Will Provide Important Guidance Governing These Cases As discussed in the Government’s opening memorandum, it makes little sense for this Court to conduct further merits proceedings while the Supreme Court and Fourth Circuit directly consider the governing legal framework that will apply in these cases. The forthcoming appellate decisions will soon either (1) resolve these cases entirely, or (2) at least provide significant guidance on critical legal questions governing these cases. See Gov’t’s Br. at 7-14. Plaintiffs do not dispute that the forthcoming appellate decisions will, at a minimum, provide important guidance regarding the legal framework to be applied in their cases. To the contrary, Plaintiffs expressly acknowledge that the Supreme Court has now granted certiorari and will soon decide four questions governing these lawsuits: (1) whether the challenge to the President’s suspension of entry of aliens abroad is justiciable; (2) whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad; (3) whether the Proclamation violates the Establishment Clause; and (4) whether the global injunction is
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impermissibly overbroad. See Trump v. Hawaii, No. 17-965, 583 U.S. ___ (U.S. Jan. 19, 2018); Pls.’ Br. at 5 n.4. Plaintiffs also do not dispute that these questions are exactly the same ones that this Court would be required to decide if it moved forward with further proceedings in this case. See Gov’t’s Br. at 8-9. In other words, Plaintiffs seek to place this Court in the position of deciding the exact same legal questions that the Supreme Court itself will soon decide.
In order to justify that request, Plaintiffs raise a host of arguments about why a stay of proceedings is not justified here—e.g., assertions that motion-to-dismiss briefing would not be significantly burdensome, and speculation about further proceedings being necessary regardless of how the appellate courts decide the pending appeals. As discussed below, however, Plaintiffs’ arguments are unfounded. It would be inefficient, burdensome, and a waste of the parties’ and the Court’s resources to proceed while the governing legal framework remains in flux, as numerous courts recognized when hearing challenges to prior policies.
A. Plaintiffs Cannot Escape the Overwhelming Authority from Prior Rounds of Litigation Demonstrating that Stays Are Appropriate
1. Plaintiffs’ opposition largely seeks to ignore the most analogous precedents—i.e., the numerous court decisions from prior rounds of litigation holding that stays of further proceedings are appropriate pending the resolution of ongoing appeals. See Gov’t’s Br. at 9-10 & n.*. Plaintiffs offer only two reasons why, notwithstanding those precedents, this Court should take a different approach.
First, Plaintiffs argue that “[t]he courts that granted stays in those cases did so while a nationwide injunction was in place.” Pls.’ Br. at 17. Of course, those stays remained in place even after the Supreme Court’s decision in June 2017 lifted the nationwide injunctions in part. See Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017) (granting a stay of the injunctions against EO-2 for all foreign nationals except those “who have a credible claim of a bona fide relationship with a
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person or entity in the United States”). Thus, the existence of a nationwide injunction was not critical to the ongoing stays entered in those cases. See, e.g., Pars Equality Center v. Trump, No. 17-cv-255 (D.D.C.), ECF No. 101 (July 19, 2017 Order) (denying a request from plaintiffs, who lacked credible claims of a bona fide relationship with a person or entity in the United States, for preliminary relief and to lift the stay of proceedings regarding EO-2’s refugee provisions). Just as the Supreme Court’s stay decision in June 2017 (allowing EO-2 to take partial effect) did not undermine the stays of proceedings entered by numerous courts, the Supreme Court’s stay decision in December 2017 (allowing the Proclamation to take effect) likewise does not undermine the appropriateness of a stay here.
Moreover, the premise of Plaintiffs’ argument is incorrect. In at least two cases, courts entered stays of proceedings even when the plaintiffs sought to challenge sections of EO-2 that were not subject to any injunction. See Washington v. Trump, 2017 WL 4857088, at *6 (W.D. Wash. Oct. 27, 2017) (granting a stay even though plaintiffs sought to challenge sections that were not enjoined, concluding that “[t]he absence of Sections 1(g), 2(d), and 2(f) from the Hawaii federal district court’s preliminary injunction does not alter the court’s calculus”); Pars Equality Center v. Trump, No. 17-cv-255 (D.D.C.), ECF No. 91 (June 20, 2017 Order) (staying merits proceedings in combined cases, even though the plaintiffs in those cases also sought relief against sections 3, 4, and 5 of EO-2).
In any event, Plaintiffs’ argument relates, at most, to whether Plaintiffs would “suffer prejudice if a stay of proceedings were granted.” Pls.’ Br. at 17. But that is a separate element of the stay analysis, discussed in more detail in Part II below. Here, the prior court decisions are relevant because they make it abundantly clear that, when appellate guidance is forthcoming, the most efficient way to proceed is a stay of further merits proceedings. See Gov’t’s Br. at 9-10. On
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that point, Plaintiffs offer no basis whatsoever for distinguishing the prior decisions. Thus, all of Plaintiffs’ arguments below, see infra Parts I.B-C, are directly contrary to the logic of the numerous other court decisions granting stays in prior rounds of litigation. That itself is reason to reject Plaintiffs’ arguments below.
Second, Plaintiffs assert that the prior decisions are irrelevant because “EO-2 was a temporary ban . . . whereas the Proclamation is indefinite.” Pls.’ Br. at 17. But Plaintiffs do not explain why the potential duration of the challenged policy has any bearing on the stay analysis. The duration of the Proclamation has no impact on the significant, potentially dispositive, guidance that the Fourth Circuit and the Supreme Court will soon provide regarding Plaintiffs’ claims. And in terms of concrete timing, the stay requested here is essentially for the same duration (if not shorter) than the stays granted with respect to the EO-2 challenges. In those cases, most courts granted stays sometime between March and June 2017. See Gov’t’s Br. at 9-10 & n.*. The Supreme Court scheduled oral argument regarding EO-2 for October 10, 2017. Thus, the stays were expected to last, at a minimum, between four and seven months. Here, even Plaintiffs acknowledge that the Supreme Court is likely to decide the Proclamation’s legality by the end of June—i.e., within approximately four months after briefing on this motion to stay is complete. See Pls.’ Br. at 7 n.5. Accordingly, the length of stay requested here is similar to, if not shorter than, what numerous courts granted when hearing challenges to prior policies. Those decisions amply support a stay here.
2. Those decisions are also the answer to Plaintiffs’ assertions that they should be permitted to pursue their claims “just as any other plaintiff is typically permitted to do.” Pls.’ Br. at 2; see also id. at 11. These cases are far from typical: Plaintiffs seek to challenge a formal nationalsecurity judgment made by the President after receiving the recommendations of several Cabinet
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officials, and the cases have been litigated with extraordinary dispatch at every stage. Indeed, the Supreme Court granted certiorari only three-and-a-half months after Plaintiffs first moved for preliminary injunctions in this Court. Compare Trump v. Hawaii, No. 17-965, 583 U.S. ___ (U.S. Jan. 19, 2018) (granting certiorari), with IAAB, ECF No. 26 (filed Oct. 6, 2017); Zakzok, ECF No. 2 (filed Oct. 6, 2017). As the decisions from prior rounds of litigation recognize, therefore, the “typical” course in these cases, based on their unique circumstances, is to stay district-court proceedings during the short amount of time necessary for expedited appellate proceedings to conclude. See Clinton v. Jones, 520 U.S. 681, 707 (1997) (the power to stay proceedings applies “especially in cases of extraordinary public moment”).
As numerous courts in prior rounds of litigation recognized, the most efficient way to proceed is to stay further merits proceedings and await forthcoming appellate guidance, and Plaintiffs offer no reason for this Court to deviate from this common course.
B. A Stay Is Amply Justified Given that Any Merits Proceedings Will Likely Need to Be Re-Evaluated Once the Appellate Decisions Are Issued
1. Plaintiffs’ opposition tries to downplay the waste of resources that would be inherent in allowing proceedings to move forward before the preliminary-injunction appeals are decided. Plaintiffs characterize the Government as raising a mere “procedural inconvenience” regarding the filing of a motion to dismiss. Pls.’ Br. at 10. And Plaintiffs argue that filing such a motion would not “meaningfully burden the Government” because “significant portions of its motion-to-dismiss brief are already largely written.” Id. at 12. But these arguments misunderstand the reasons why a stay is warranted here.
The Government’s argument for a stay is not premised solely on the burden associated with drafting a motion to dismiss. Rather, the Government’s argument is that it is pointless to conduct motion-to-dismiss proceedings now, given that appellate court decisions are imminent and, once
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issued, they will either (1) entirely resolve these cases, or (2) significantly clarify the governing legal framework. Even in that latter scenario, moving forward with motion-to-dismiss briefing now still does not make sense: Once the appellate courts clarify the governing legal framework, the parties and the Court will likely need to re-argue the motion-to-dismiss issues to ensure that any prior rulings by this Court are fully consistent with the framework announced by the appellate courts. Thus, further proceedings now are a waste of both the parties’ and the Court’s resources— they do not move the cases closer to resolution because, at best, another round of briefing will likely need to occur once the appellate courts issue their decisions.
Plaintiffs likewise miss the point in asserting that a stay would not promote judicial economy because “[t]he Court has already addressed justiciability in two lengthy, well-reasoned opinions.” Pls.’ Br. at 12. Aside from being in considerable tension with Plaintiffs’ argument that rulings on preliminary injunctions do not determine how the claims will ultimately be decided on the merits, see Pls.’ Br. at 18-20; infra Part I.C, Plaintiffs’ assertion does not address the more important reason for a stay here: It is wasteful for the Court to decide the motion-to-dismiss issues now, only to have to re-consider them later in light of the appellate courts’ decisions.
In that respect, the proper question is not whether the Government has identified “any intervening decisions [that] should cause this Court to reconsider its prior rulings.” Pls.’ Br. at 12. The proper question is whether any such rulings are imminent, and on that question even Plaintiffs do not deny that the answer is “yes”—i.e., that appellate courts will soon decide the exact same legal questions that this Court would have to decide if it proceeded with motion-to-dismiss briefing. See Gov’t’s Br. at 7-9.
Moreover, the Government has, in fact, identified an intervening decision that should prompt this Court to reconsider its prior conclusions—namely, the Supreme Court’s stay of this
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Court’s preliminary injunction. See Trump v. IRAP, 138 S. Ct. 542 (2017). The Supreme Court’s decision on the Government’s stay application was based on essentially the same factors governing issuance of the preliminary injunction in the first instance, and the parties raised the same arguments that they raised before this Court. See generally Respondents’ Opposition to Application for Stay, Trump v. IRAP, No. 17-A-560 (S. Ct. filed Nov. 28, 2017). Thus, there is indeed good reason for this Court to await additional appellate guidance before allowing further merits proceedings.
2. Plaintiffs suggest that the Government could avoid the inefficiencies of motion-todismiss proceedings by declining to file such a motion and instead filing an answer to the Complaint. See Pls.’ Br. at 12-13, 22-23. But the Court should not enter a schedule that makes sense only if the Government declines to exercise a procedural right to which it is entitled. Indeed, given that the Government has already argued—before this Court, the Fourth Circuit, and the Supreme Court—that Plaintiffs’ claims are not justiciable, it would be inappropriate for the Government not to address those issues in a motion to dismiss and instead allow discovery to proceed.
This Court’s obligation to address justiciability first is effectively the lesson of In re United States, 138 S. Ct. 443 (2017). There, the Supreme Court held in the context of a mandamus petition that the district court should not have ordered the Government to disclose a number of documents and instead should have “first resolved the Government’s threshold arguments” because “those [threshold] arguments, if accepted, likely would eliminate the need for” such disclosure. Id. at 445. Plaintiffs relegate this highly analogous decision to a footnote, and seek to distinguish it solely on the basis that “[t]his Court has already considered and decided the Government’s reviewability arguments twice.” Pls.’ Br. at 13 n.7. But again, Plaintiffs’ arguments are internally inconsistent—
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they cannot simultaneously argue that this Court’s legal conclusions from the preliminaryinjunction phase are conclusive, but the appellate courts’ legal conclusions will be only tentative. See id. at 18-20; infra Part I.C.
More fundamentally, even if this Court has already rejected the Government’s justiciability arguments, the appellate courts have not. Plaintiffs cannot avoid the import of In re United States on that basis, therefore, given that the Supreme Court also suggested that it might be prudent for the district court to allow the appellate courts to decide the Government’s reviewability arguments. See In re United States, 138 S. Ct. at 445 (“The District Court should proceed to rule on the Government’s threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate.”). Here, the Supreme Court has already agreed to decide the same justiciability (and other legal) questions that this Court would have to confront as part of a motion to dismiss. In these circumstances, it makes eminent sense for this Court to await the Supreme Court’s decision on those issues before moving forward with wasteful and burdensome motion-to-dismiss proceedings, and certainly before allowing the type of intrusive discovery contemplated by Plaintiffs. See id.; see also infra Part III.
C. The Appellate Decisions Will Likely Resolve These Cases Entirely Or, At a Minimum, Will Provide Critical Guidance on Key Legal issues
Plaintiffs try to undermine the value of the forthcoming appellate guidance by asserting that resolution of these cases in their entirety “will not happen” and that “further proceedings will be necessary no matter how the Supreme Court rules[.]” Pls.’ Br. at 1, 22; see also id. at 19-22. Plaintiffs’ arguments are wrong.
1. Plaintiffs first contend that it is “speculative” whether the Supreme Court will decide the merits of Plaintiffs’ claims in the context of an appeal of a preliminary injunction. Pls.’ Br. at 18-19. Obviously nobody can predict with certainty how the Supreme Court will rule. But
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reasonable predictions can be made, and all signs here point to the Supreme Court resolving Plaintiffs’ claims on the merits. For one thing, the questions that the Supreme Court agreed to decide all relate to the underlying merits of Plaintiffs’ claims, not the four-factor test governing preliminary injunctions. For example, the Supreme Court agreed to decide “whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad,” not whether there is a likelihood of success on such a claim. Id. at 5 n.4; see Trump v. Hawaii, No. 17-965, 583 U.S. ___ (U.S. Jan. 19, 2018). Moreover, Plaintiffs do not dispute that, when litigating EO-2 before the Supreme Court, all of the parties (including the IRAP plaintiffs) briefed the ultimate merits, not just the preliminary-injunction factors. See Gov’t’s Br. at 11-12. Thus, there is at least a reasonable likelihood that the Supreme Court will decide the claims on their merits rather than in a preliminary posture.
2. Plaintiffs also argue that “[e]ven if the Supreme Court decided the merits of the claims before it, further proceedings in this Court will still be necessary because some of Plaintiffs’ claims are not before either the Supreme Court or the Fourth Circuit as part of the preliminary injunction appeal.” Pls.’ Br. at 21 (mentioning free speech, equal protection, due process, free association, and APA statutory claims).
As an initial matter, Plaintiffs mischaracterize the governing legal standard: a stay is still warranted even when the ongoing appellate proceedings may not “settle every question of . . . law.” Landis v. N. Am. Co., 299 U.S. 248, 256 (1936). It is sufficient that the ongoing appeal is likely to “settle many” issues and “simplify” others, id., such that a stay will facilitate the orderly course of justice and conserve resources for both the Court and the parties. Here, even if the issues on appeal are not identical, it cannot be seriously disputed that the Supreme Court and Fourth Circuit decisions will “settle many” issues and “simplify” others, as past courts have recognized
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in similar circumstances. See, e.g., Washington v. Trump, 2017 WL 2172020, at *3 (W.D. Wash. May 17, 2017); Hawai’i v. Trump, 233 F. Supp. 3d 850, 855 (D. Haw. 2017); see also, e.g., Fairview Hosp. v. Leavitt, 2007 WL 1521233, at *3 n.7 (D.D.C. May 22, 2007); In re Literary Works in Elec. Databases Copyright Litig., 2001 WL 204212, at *3 (S.D.N.Y. Mar. 1, 2001).
Moreover, even if not all of Plaintiffs’ claims are presently before the Fourth Circuit or the Supreme Court, the appellate decisions may still effectively dispose of such claims. For example, the Government has raised threshold arguments as to the justiciability of Plaintiffs’ constitutional and statutory claims. A ruling in the Government’s favor on those arguments would resolve Plaintiffs’ claims entirely.
Additionally, the Government’s position is that the Mandel standard applies to all of Plaintiffs’ constitutional claims. Although Plaintiffs assert in a footnote that “the Mandel framework would not govern all of Plaintiffs’ claims,” Pls.’ Br. at 21 n.8, that contention is wholly unexplained and is contrary to prior cases applying the Mandel standard to various types of claims. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 760 (1972) (First Amendment right to “hear[] and meet[]” with alien); Fiallo v. Bell, 430 U.S. 787, 791 (1977) (applying Mandel to claims that statute discriminated based on sex and illegitimacy in violation of the Equal Protection and Due Process Clauses); Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (applying Mandel to equal protection claim alleging discrimination based on “religion, ethnicity, gender, and race”). Although Plaintiffs are free to dispute the applicability of Mandel, “the salient point for purposes of Defendants’ stay motion is that resolution of the . . . appeal is likely to provide guidance to this court” on how broadly the Mandel standard should apply. Washington, 2017 WL 2172020, at *2.
3. Finally, Plaintiffs also argue that the appeals will not definitively resolve their claims because their claims “turn on questions of fact.” Pls.’ Br. at 20. But the relevance of Plaintiffs’
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purported “factual record” is itself a disputed issue that the appellate courts are likely to shed light on. See Gov’t’s Br. at 12-13; see also infra Part III. Notably, this Court previously described Plaintiffs’ claims as “center[ing] on legal issues arising from the Proclamation[.]” Prelim. Inj. Op. (IAAB ECF No. 46, Zakzok ECF No. 36) at 36.
Accordingly, there is good reason for this Court to await appellate guidance before conducting further proceedings. The appellate decisions may entirely resolve, or at least provide significant guidance on, key legal issues governing Plaintiffs’ claims. Consistent with the overwhelming weight of authority, therefore, a stay of additional proceedings is warranted here. II. Plaintiffs’ Arguments Regarding Harms Do Not Support Moving Forward with
Merits Proceedings Now Throughout their filing, Plaintiffs argue that they are suffering ongoing harms from the Proclamation and that a stay should be denied for that reason. See Pls.’ Br. at 7-10, 17. There are two problems with this theory: first, the alleged harms stem from the Supreme Court’s decision to stay this Court’s preliminary injunction, and that decision actually confirms that a stay of further proceedings is appropriate here; and second, Plaintiffs are wrong that staying these proceedings would “necessarily lengthen the litigation process” and “delay the ultimate resolution of their claims.” Pls.’ Br. at 7. Thus, Plaintiffs’ purported harms do not provide a basis for denying the Government’s requested stay. A. The Supreme Court’s Stay Decision Does Not Warrant Moving Forward In a
Wasteful or Inefficient Manner Plaintiffs argue that they are suffering “ongoing harm” which justifies denying the Government’s stay motion and instead moving forward with additional merits proceedings. Pls.’ Br. at 10. But Plaintiffs are suffering these purported harms because the Supreme Court determined that, while the preliminary-injunction appeals are ongoing, the Proclamation should be allowed to go into effect. See Trump v. IRAP, 138 S. Ct. 542 (2017). In reaching that conclusion,
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the Supreme Court rejected the very same alleged harms that Plaintiffs now rely on here. Compare, e.g., Pls.’ Br. at 8-9 (discussing alleged injuries of family separation), with Respondents’ Opposition to Application for Stay, Trump v. IRAP, No. 17-A-560, at 16-18 (S. Ct. filed Nov. 28, 2017) (arguing against a stay of the preliminary injunction, due to the “indefinite and potentially permanent ban” that will prolong the separation of family members). Given that Plaintiffs’ purported harms were insufficient to overcome a stay of this Court’s preliminary injunction, those harms should likewise be insufficient to justify further merits proceedings during that same time period. The Supreme Court decided what the status quo should be over the next several months, and Plaintiffs’ dissatisfaction with that determination is not itself a reason to move forward with merits proceedings here.
Indeed, the Supreme Court’s stay order reinforces the appropriateness of a stay here, as the governing legal framework remains uncertain. If this Court were to proceed, it would be required to attempt to discern meaning from that stay order in order to ensure that its legal rulings are consistent with the Supreme Court’s judgments. But it makes little sense for this Court to move forward in such a manner given that the Supreme Court itself is acting with great speed—i.e., certiorari was granted in mid-January, oral argument will presumably be scheduled for April, and even Plaintiffs predict a decision by the end of June. See Pls.’ Br. at 7 n.5. Plaintiffs’ purported harms are thus an inadequate basis for moving forward with merits proceedings, given the Supreme Court’s rejection of those harms in the context of its stay decision and the fact that even Plaintiffs predict that the Supreme Court will resolve these appeals within the next few months.
B. Allowing Merits Proceedings Now is Unlikely to Bring These Cases Closer to Final Resolution
Plaintiffs’ argument regarding their harms also depends on an unsupported assumption. Even if Plaintiffs are suffering harms from enforcement of the Proclamation, allowing merits
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proceedings to move forward—i.e., briefing a motion to dismiss and/or conducting discovery— would not itself remedy Plaintiffs’ purported harms of family separation. Plaintiffs’ argument depends, therefore, on their assumption that “a stay will delay the ultimate resolution of their claims” and “would necessarily lengthen the litigation process[.]” Id. at 7.
For reasons similar to those discussed above in Part I.B, however, Plaintiffs’ assumption is unfounded. Allowing merits proceedings to move forward now will not necessarily bring these cases closer to final judgment, but would instead likely result in duplicative motions practice— i.e., with one round occurring now (when the legal framework is uncertain), and a second round occurring later (once the appellate courts clarify the governing framework, to ensure this Court’s prior rulings are consistent with the articulated framework). That is equally true with respect to discovery. As Plaintiffs acknowledge, the initial stages of discovery will likely be consumed by motions practice regarding whether discovery is appropriate, and if so the permissible scope of such discovery. See Pls.’ Br. at 13-15; Gov’t’s Br. at 12-14. Once the appellate decisions are issued, therefore, any discovery-related decisions will also likely need to be re-considered to ensure consistency with the legal framework articulated by the appellate courts.
Thus, even assuming the appeals do not entirely resolve these cases, but see supra Part I.C, Plaintiffs are wrong to assume that conducting merits proceedings now would necessarily save time later. Certainly it is far more efficient—and it will not necessarily take any additional time— to conduct only one round of briefing after the appeals, rather than two rounds of briefing both before and after the appeals. See Washington v. Trump, 2017 WL 1050354, at *5 (W.D. Wash. Mar. 17, 2017) (“ʻWhere significant litigation is likely to take place during the pendency of an appeal,’ granting a stay is a ‘means of conserving judicial resources.’ Considerable judicial resources may be wasted ‘if the appellate court’s controlling decision changes the applicable law
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or the relevant landscape of facts that need to be developed.’” (quoting Hawaii v. Trump, 233 F. Supp. 3d 850, 856 (D. Haw. 2017) (modifications and citations omitted))). III. At A Minimum, the Court Should Reject Plaintiffs’ Request to Begin Discovery,
Which Plaintiffs Have Now Confirmed Will Be Extremely Burdensome Plaintiffs do not dispute that the forthcoming appellate decisions, to the extent they do not entirely resolve these cases, will provide important guidance regarding the availability and scope of discovery—issues that are currently disputed between the parties. See Gov’t’s Br. at 12-15. Plaintiffs’ concession on this point independently justifies the Government’s requested stay of discovery until after resolution of the appellate proceedings. Rather than dispute the logic of waiting to proceed with discovery until after the appellate courts provide such guidance, Plaintiffs instead respond to a different argument—i.e., they argue that they should be permitted to proceed with discovery regardless of whether the Government would respond to their Complaints with a motion to dismiss. See Pls.’ Br. at 22-23. But the Government’s intent to file a dispositive motion to dismiss, including based on justiciability, provides an additional reason (beyond just the ongoing appeals) why discovery should not be permitted now. Plaintiffs also try to downplay the burdens of their requested discovery, particularly with respect to two sets of document requests that they “are willing to begin with[.]” Id. at 23. But Plaintiffs’ filing actually confirms that their requested discovery would be tremendously burdensome and intrusive, and would require a significant expenditure of resources from both the parties and this Court. In these circumstances, there is ample reason to, at a minimum, stay all discovery pending resolution of the appellate proceedings, or at least until after resolution of the Government’s motion to dismiss.
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A. The Pendency of a Dispositive Motion to Dismiss Would Independently Justify a Stay of Discovery
As noted above, the Government’s primary argument regarding discovery is that, because appellate proceedings would inform the appropriate scope of discovery (if any), discovery should be stayed pending resolution of those proceedings. See Gov’t’s Br. at 12-14; see also Washington, 2017 WL 2172020, at *2 (“Although the Ninth Circuit is not considering discovery issues on appeal, it is likely to decide legal issues that will impact the court’s resolution of the parties’ discovery disputes here by clarifying ‘the applicable law or relevant landscape of facts that need to be developed.’” (quoting Hawaii, 233 F. Supp. 3d at 856)). Plaintiffs do not dispute the logic of that primary argument. Instead, Plaintiffs respond to a different argument—that the Government’s intent to file a motion to dismiss as the next step in these proceedings should not prevent them from beginning discovery. See Pls.’ Br. at 22-23 (“Although courts sometimes stay discovery during the pendency of a motion to dismiss, this is not the default rule under the Federal Rules of Civil Procedure[.]”).
Of course, the filing of a dispositive motion to dismiss would be an additional reason why discovery should not proceed here. It is true that the mere filing of a motion to dismiss does not automatically stay discovery. But courts have routinely granted stays in such circumstances, recognizing that “[a] stay of discovery pending the determination of a dispositive motion is an eminently logical means to prevent wasting the time and effort of all concerned, and to make the most efficient use of judicial resources.” Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 2 (D.D.C. 2001); see also, e.g., Chaudhry v. Mobil Oil Corp., 186 F.3d 502, 505 (4th Cir. 1999) (“The only way [the plaintiff] could possibly have been entitled to discovery” given the filing of a motion to dismiss “was if [the defendant] had attacked the factual basis for jurisdiction.”); Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) (“Nor did the court err
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by granting the government’s motion . . . to stay discovery pending disposition of the 12(b)(1) motion.”), overruled on other grounds by Sheridan v. United States, 487 U.S. 392 (1988); Tilley v. United States, 270 F. Supp. 2d 731, 734 (M.D.N.C. 2003) (“A protective order . . . to stay discovery pending determination of a dispositive motion is an appropriate exercise of the court’s discretion.”); cf. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). These principles have particular force when the defendant raises a challenge to the justiciability or reviewability of Plaintiffs’ claims; as discussed above, that was effectively the Supreme Court’s holding in the recent decision of In re United States, 138 S. Ct. at 445; supra Part I.B.
Were the Court to allow merits proceedings to begin, therefore, the next step would be for the Government to file a motion to dismiss, raising both justiciability arguments and other reasons why Plaintiffs’ Complaints fail to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1), 12(b)(6). Such a motion would itself be a reason to stay discovery, independent from the ongoing appellate proceedings. Here, then, there are two reasons not to allow Plaintiffs to begin discovery immediately—because there are ongoing appeals that will inform the proper scope of any such discovery, and also because the Government would raise a dispositive motion to dismiss that should be decided prior to allowing any such discovery to begin.
B. Plaintiffs’ Filing Confirms that Discovery Would Be Highly Burdensome In addition to the inefficiencies of going through discovery when it may turn out to be entirely unnecessary, Plaintiffs’ filing now makes clear that allowing them to conduct discovery would be burdensome for both the parties and the Court. That is an independent reason why discovery should be stayed. As discussed in the Government’s opening brief, allowing discovery to begin now would result in significant motions practice regarding the appropriate scope, if any, of discovery regarding Plaintiffs’ claims. See Gov’t’s Br. at 13-14, 16-21. Plaintiffs do not shy away from that prospect,
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but instead run directly into it. See, e.g., Pls.’ Br. at 15 (“Plaintiffs do not deny that there may be disputes about discovery requiring the time and attention of the parties.”); id. at 14 (noting that “this process could be lengthy and involve complicated issues”); id. at 27 (arguing that this Court should “resolve any questions of privilege while appellate proceedings on the preliminary injunction are pending”). Plaintiffs have thus conceded that allowing them to begin discovery will necessarily result in significant motions practice, requiring this Court to decide “complicated issues” including, among other things, sensitive privilege claims.
Plaintiffs argue they have minimized these burdens by focusing on two categories of documents. See Pls.’ Br. at 23-29. Even those categories, however, would impose significant burdens on the parties and the Court. See infra Part III.C. Moreover, Plaintiffs expressly say that those categories are only how their discovery will begin. See Pls.’ Br. at 23. Thus, Plaintiffs’ eventual discovery will presumably be much broader, leading to even more disputes and imposing even more significant burdens on the parties and the Court.
Plaintiffs also argue that it is “premature” to criticize Plaintiffs’ discovery requests as overly broad. See Pls.’ Br. at 15-16. During the pre-motion conference call with the parties, however, this Court expressly directed Plaintiffs to identify the subjects on which they seek discovery. By failing to specify those subjects—and instead providing only a list of topics on which their discovery will “begin”—it is Plaintiffs who have put the Government, and the Court, in the position of assuming that the full scope of their discovery will be quite expansive.
Indeed, the record here already confirms that Plaintiffs’ discovery will be overly broad and intrusive. Not only are the IAAB and Zakzok plaintiffs seeking discovery, but the IRAP plaintiffs are also seeking permission to begin discovery if the IAAB and Zakzok plaintiffs are permitted to do so. See Pls.’ Notice Regarding Pending Stay Motions in Related Cases, IRAP v. Trump, No. 17-
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cv-361-TDC (D. Md.), ECF No. 244 (Feb. 1, 2018). And the IRAP plaintiffs have already made clear their intent to seek broad, intrusive discovery. See Gov’t’s Br. at 16-19. Granting Plaintiffs’ requested relief would therefore allow discovery to begin for three separate sets of plaintiffs—one of which has already confirmed that they will seek broad discovery, and the other two seeking at least an initial round of intrusive discovery as well.
In that respect, it is notable that Plaintiffs offer no defense of their refusal to consent to consolidation of these cases. They say that “[t]here is no basis to assert that Plaintiffs will begin to abuse the litigation process now.” Pls.’ Br. at 16-17. In order to demonstrate the burdens of discovery, however, the Government need not accuse Plaintiffs of any abuse. The obvious reality is that discovery by three separate sets of plaintiffs, in three separate cases, is inherently more burdensome than discovery by a single consolidated group of plaintiffs. By refusing to consent to consolidation of the cases, Plaintiffs are again effectively confirming that allowing discovery here will impose significant burdens on both the Government and this Court.
C. The Particular Discovery Proposed by Plaintiffs Would Be Significantly Burdensome and Require this Court to Confront Sensitive Issues
Plaintiffs argue that their requested discovery will not be burdensome, because they are “willing to begin with” discovery on two topics: (1) the reports underlying the Proclamation; and (2) documents regarding implementation of the waiver process under the Proclamation. Pls.’ Br. at 23. Neither of these categories supports Plaintiffs’ requests to proceed with discovery now.
1. The Underlying Reports Are Irrelevant, Classified, and Privileged For the first category, Plaintiffs would request the following: (1) the report, identified in Section 1(c) of the Proclamation, that the Secretary of Homeland Security submitted to the President on July 9, 2017 (the “July Report”); (2) the report, identified in Section 1(h) of the Proclamation, that the Acting Secretary of Homeland Security submitted to the President on September 15, 2017 (the “September Report”); and (3) any attachments or appendices associated with either of those reports.
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Pls.’ Br. at 23. There are numerous problems with this request: the reports are irrelevant as Plaintiffs themselves have previously argued; the reports contain classified information; and the reports are also privileged in their entirety. Thus, allowing Plaintiffs to pursue discovery over these documents would lead to significant motions practice regarding sensitive Government privileges.
a. As this Court has previously recognized, the reports underlying the Proclamation are irrelevant to Plaintiffs’ claims. See Prelim. Inj. Op. at 81 (noting that even if the September Report had been submitted to the Court, “its value . . . would be limited” because “in Establishment Clause cases, it is the opinion of the reasonable observer that controls”). Indeed, Plaintiffs themselves previously made this very argument: “[W]e’re not suggesting that there’s a need for this Court to look at the report because the question is what the reasonable observer would perceive and understand from the facts that are readily available to the public.” Prelim. Inj. Hr’g Tr. at 22.
Plaintiffs now try to distance themselves from that statement, noting that it was “a statement by IRAP’s counsel[.]” Pls.’ Br. at 25. Plaintiffs do not dispute, however, that IRAP counsel was arguing on behalf of all plaintiffs (including the IAAB and Zakzok plaintiffs) when making that statement. See Prelim. Inj. Hr’g Tr. at 6. Plaintiffs also try to characterize the statement to be merely that the Court need not look at the report “to rule for Plaintiffs.” Pls.’ Br. at 25. But that characterization ignores the latter half of the sentence—that the Court need not look at the report because the relevant legal question “is what the reasonable observer would perceive and understand from the facts that are readily available to the public.” Prelim. Inj. Hr’g Tr. at 22. Plaintiffs may not be bound by this statement for the entire case, but they should, at a minimum, not be permitted to change their position now—before the preliminary-injunction appeals have even concluded—simply because a different position is more conducive to their
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current requests for discovery. b. As Plaintiffs surmise, the underlying reports they seek are privileged and contain
classified information. See Pls.’ Br. at 27. Accordingly, they cannot be discussed publicly or provided to opposing counsel as part of discovery.
First, at least some portions of the reports and their attachments contain classified information. Cf. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (the President has “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to . . . give that person access to such information”).
Second, the reports and their attachments are privileged in their entirety. The documents are protected in full by the presidential-communications privilege because they involve confidential, indeed classified, communications to the President of the United States. See Cheney v. United States District Court, 542 U.S. 367, 389-90 (2004); United States v. Nixon, 418 U.S. 683, 706 (1974); In re Sealed Case, 121 F.3d 729, 744-53 (D.C. Cir. 1997). Portions of the reports are also subject to additional confidentiality protections and privileges, such as the deliberativeprocess privilege. See Procl. § 1(h) (describing the September report as “recommending entry restrictions and limitations on certain nationals”); Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (“[D]eliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”). Accordingly, the reports and their attachments are not subject to disclosure due to their privileged content.
c. By seeking discovery into these reports, Plaintiffs are creating exactly the “collision course” that the Supreme Court has warned against. Cheney, 542 U.S. at 389. Specifically, Plaintiffs are seeking to prompt the President to assert his Executive privileges over those reports,
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and thereby force this Court “into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.” Id. That is not how the Supreme Court has directed discovery to proceed:
This Court has held, on more than one occasion, that the high respect that is owed to the office of the Chief Executive is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery, and that the Executive’s constitutional responsibilities and status are factors counseling judicial deference and restraint in the conduct of litigation against it. Id. at 385 (modifications, internal citations omitted); see also United States v. McGraw-Hill Cos., Inc., No. 13-cv-0779-DOC (JCGx), 2014 WL 8662657, at *8 (C.D. Cal. Sept. 25, 2014). In that respect, Plaintiffs are incorrect that they “have no burden to carry” with respect to their attempts to obtain discovery. Pls.’ Br. at 11. The Supreme Court has held otherwise. See Cheney, 542 U.S. at 388 (discovery intruding on the Chief Executive is permissible “only after the party requesting the information . . . ha[s] satisfied his burden of showing the propriety of the requests,” because the Executive Branch does not “bear the onus of critiquing the unacceptable discovery requests line by line”). In the present posture, Plaintiffs are unable to demonstrate the propriety of their requests because the legal framework governing Plaintiffs’ claims remains uncertain, and until those legal issues are resolved by the appellate courts, Plaintiffs cannot show that they are entitled to intrusive discovery against the Chief Executive. Allowing such discovery to proceed while the appellate proceedings are ongoing—proceedings that may ultimately obviate the need for any discovery—would be improper. See In re United States, 138 S. Ct. at 445; Cheney, 542 U.S. at 386-90. The mere process of litigating these sensitive privilege issues, moreover, underscores why a stay of discovery is appropriate until after the appellate proceedings have concluded and have clarified the governing legal framework. d. Plaintiffs argue that “[p]roducing the reports will not be burdensome because the
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Government must produce them soon in FOIA litigation,” citing Brennan Ctr. for Justice at N.Y. Univ. Sch. Of Law v. Dep’t of State, No. 17-cv-7520, 2018 WL 369783, at *8 (S.D.N.Y. Jan. 10, 2018). Pls.’ Br. at 24. Plaintiffs, however, mischaracterize the status of that case: the Government has not been ordered to produce the reports, but instead has been directed only to produce those portions of the reports that are not exempt under FOIA, and to produce a Vaughn index identifying the exemptions that apply to any portions of the reports that are withheld. See Brennan Ctr., 2018 WL 369783 at *8. Because the Government has determined that the reports are properly withheld in full pursuant to FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), and in part pursuant to several other exemptions, it has not produced the reports in that case.
Moreover, it is worth noting that the plaintiff in that case is represented by virtually all of the same counsel representing the IAAB and Zakzok plaintiffs here. Indeed, the named plaintiff— the Brennan Center for Justice—is itself counsel for the Zakzok plaintiffs. Cf. Pls.’ Br. at 31. Plaintiffs’ argument thus cuts both ways: to the extent Plaintiffs (or at least their counsel) already have a forum available in which to seek the underlying reports, there is no need for this Court to permit discovery (at least at this stage) for Plaintiffs to pursue the exact same documents.
Plaintiffs also argue that this discovery request will not be burdensome because it pertains to an “exceedingly small set of documents[.]” Pls.’ Br. at 23. As another court recently noted, however, the burden of litigating discovery disputes is not tied to the volume of documents at issue. See Arab Am. Civil Rights League v. Trump, No. 17-10310, 2017 WL 2501060, at *2-3 (E.D. Mich. June 9, 2017) (noting that the discovery dispute “pertains only to one document request seeking a single document,” but there have nonetheless been “voluminous filings and issues raised,” and therefore “it is clear that resolution of disputes related to Plaintiffs’ ‘limited’ discovery requests will require significant resources on behalf of the parties and the Court,” and “devot[ing] time and
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resources to resolve these matters during the appeal in IRAP would not be economical, because the Supreme Court’s decision will be significantly relevant to, and possibly control, the Court’s consideration of issues raised in this suit”). The same considerations likewise warrant a stay here, particularly because the documents in question are classified and privileged.
In sum, Plaintiffs’ argument—that they should be allowed to seek classified, privileged advice provided to the President, and that this Court should “resolve any questions of privilege while appellate proceedings on the preliminary injunction are pending,” Pls.’ Br. at 27—only serves to confirm the burdensome, intrusive nature of the discovery they seek, and the resulting motions practice that will be necessary. This Court should not invite such motions practice—over sensitive issues such as Plaintiffs’ access information covered by the presidential communications privilege—before the appellate proceedings are resolved, i.e., when it is unclear whether any such discovery will even be necessary.
2. Plaintiffs Have No Basis for Seeking Information Related to Implementation of the Proclamation’s Waiver System
For their second request, Plaintiffs argue they should be allowed to seek: [R]ecords created on or after September 24, 2017—the date the Proclamation was issued—of practices, policies, guidance, and procedures addressing how consular officers should evaluate visa applications from nationals of the affected countries and how they are to determine whether waiver requests will be granted, including how to determine whether an individual’s entry “would cause . . . undue hardship,” “would not pose a threat to the national security or public safety of the United States,” and “would be in the national interest.” Pls.’ Br. at 28 (quoting Procl. § 3(c)). But again, Plaintiffs have no basis for requesting this information, and litigation over it would be quite burdensome for the parties and the Court. a. As discussed in the Government’s opening brief, implementation of the Proclamation’s waiver provision has no bearing on the merits of Plaintiffs’ claims. See Gov’t’s Br. at 15. Plaintiffs assert that the Government relied on the waiver provision as “evidence that ‘[n]either the
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Proclamation’s text nor its operation evidence an intent to exclude Muslims,’” Pls.’ Br. at 27-28 (quoting Gov’t’s Prelim. Inj. Opp. at 40), and Plaintiffs now “have reason to believe that the waiver process is not operating as set forth in the Proclamation[.]” Id. at 28.
As an initial matter, the quoted statement from the Government’s brief was made as an alternative argument if the Court were to apply domestic Establishment Clause precedents rather than the Mandel standard. Thus, the quoted statement cannot be construed as a concession that information related to implementation of the waiver provision would actually be relevant to Plaintiffs’ claims. In the Government’s view, no such discovery is appropriate. See Gov’t’s Br. at 12-14. Plaintiffs’ request for information regarding the waiver process would therefore require the same motions practice discussed above—i.e., litigating whether any discovery is appropriate, and if so, the permissible scope of that discovery.
More fundamentally, Plaintiffs cannot obtain discovery based on a vague, non-specific statement that they “have reason to believe that the waiver process is not operating as set forth in the Proclamation[.]” Pls.’ Br. at 28. “The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chem. Found., 272 U.S. 1, 14-15 (1926); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Absent some sort of concrete foundation for Plaintiffs’ speculation regarding how the waiver system is being implemented, there is no basis for permitting discovery on such a topic now, before the appellate proceedings have concluded.
b. The only specific issue Plaintiffs mention is that “[d]espite the Proclamation’s instructions, no guidance has been publicly released, which means that visa applicants and their U.S. relatives have no way to know how applicants may apply for a waiver[.]” Pls.’ Br. at 28. To
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illustrate the point, Plaintiffs discuss how John Doe #6’s mother-in-law was denied a waiver even though she was “never given an opportunity to apply for a waiver or demonstrate that she meets the criteria set forth in the waiver provision of the Proclamation[.]” Id.
This alleged inconsistency does not justify Plaintiffs’ demands for discovery. For one thing, the Proclamation did not require that any guidance be issued publicly. See Procl. § 3(c). And in any event, Plaintiffs are also wrong about the absence of public guidance. Since December 2017, the State Department’s website has included a “Frequently Asked Questions” page containing the following guidance regarding waivers:
Will you process waivers for those affected by the Proclamation? How do I qualify for a waiver to be issued a visa? As specified in the Proclamation, consular officers may issue a visa based on a listed waiver category to nationals of countries identified in the [Proclamation] on a case-by-case basis, when they determine: that issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship. There is no separate application for a waiver. An individual who seeks to travel to the United States should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is eligible for a waiver. New Court Orders, State Dep’t (Dec. 4, 2017), available at https://travel.state.gov/ content/travel/en/News/visas-news/new_court_orders_on_presidential_proclamation.html. Accordingly, Plaintiffs’ purported inconsistency involving John Doe #6’s mother-in-law is based on their own misunderstanding: There is no opportunity to “apply” for a waiver beyond the general visa application and interview process, and an applicant’s opportunity to demonstrate that he or she meets the criteria for a waiver likewise occurs during the visa application and interview process. As properly understood, then, there is no inconsistency between the Proclamation and the events described by Plaintiffs pertaining to John Doe #6’s mother-in-law. Accordingly, discovery should not be permitted on the basis of those allegations.
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c. As discussed above, this document request would not avoid motions practice based on

the documents’ purported relevance. Similarly, this request also would not avoid motions practice

based on the sensitive or privileged nature of the requested documents. Some of the internal

guidance that has been issued contains classified information, and may also contain other

privileged information such as law-enforcement sensitive information.

The connection between Plaintiffs’ requests and these sensitive privileges is obvious. For

example, the Proclamation directed the Secretaries of State and Homeland Security to issue

guidance addressing “the standards, policies, and procedures” for “determining whether the entry

of a foreign national would not pose a threat to the national security or public safety of the United

States[.]” Procl. § 3(c)(ii)(A). The public disclosure of that information—i.e., the standards and

processes by which the United States determines whether a foreign national poses a threat—could

easily undermine the United States’ national security and/or law-enforcement interests.

Allowing this discovery request to go forward, therefore, would also be significantly

burdensome for the parties and the Court—again leading to extensive motions practice touching

on sensitive issues. This burdensome motions practice amply justifies a stay of discovery until

after the appellate proceedings have been resolved—i.e., to ensure that any such discovery is

actually necessary, and to have the benefit of the appellate courts’ rulings in deciding what is

relevant and necessary for adjudication of Plaintiffs’ claims.

*

*

*

*

The most prudent course is for the Court to stay all proceedings pending resolution of the

appeals. Given that critical legal issues are currently pending before the Supreme Court, and given

that the Supreme Court itself is moving expeditiously towards resolution of those issues, there is

no reason for this Court to move forward with additional merits proceedings. Accordingly, this

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Court should stay all further merits proceedings, or at a minimum stay discovery pending resolution of the ongoing appellate proceedings.
CONCLUSION The Court should stay all proceedings in IAAB and Zakzok pending final resolution of the preliminary-injunction proceedings before the Fourth Circuit and/or the Supreme Court.

Dated: February 9, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
STEPHEN M. SCHENNING Acting United States Attorney
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Director, Federal Programs Branch
/s/ Daniel Schwei DANIEL SCHWEI (Bar No. 96100) MICHELLE R. BENNETT (Bar No. 806456) KEVIN SNELL JOSEPH C. DUGAN Senior Trial Counsel / Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington DC 20530 Tel: (202) 305-8693 Fax: (202) 616-8470 E-mail: daniel.s.schwei@usdoj.gov

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 Case 8:17-cv-02921-TDC Document 67 Filed 02/16/18 Page 1 of 22
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.
Defendants.
EBLAL ZAKZOK, et al., Plaintiffs,
v. DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants.

Civil Action No.: 17-CV-2921 Judge Chuang
Civil Action No.: 17-CV-2969 Judge Chuang

REPLY IN SUPPORT OF MOTION FOR ENTRY OF A SCHEDULING ORDER

Case 8:17-cv-02921-TDC Document 67 Filed 02/16/18 Page 2 of 22
TABLE OF CONTENTS
INTRODUCTION................................................................................................................... 1 ARGUMENT .......................................................................................................................... 2 I. Discovery Should Begin Because The Government Has Not Shown That
Discovery Will Impose A Hardship On It. ..................................................................... 2 A. The Government Bears The Burden Of Demonstrating That Discovery
Should Not Proceed. ......................................................................................... 3 B. The Government Has Not Carried Its Heavy Burden Of Showing That
Plaintiffs Should Be Prevented From Beginning Discovery. ............................... 4 C. Permitting Discovery Will Allow The Cases To Progress More Quickly
Toward Final Judgment. .................................................................................... 7 II. The Government’s Challenges To The Discovery Requests Lack Merit And Are
Premature In Any Event. .............................................................................................. 9 A. Plaintiffs Should Be Allowed Discovery Of The Reports Without Further
Delay................................................................................................................ 9 1. The Reports Are Relevant To Plaintiffs’ Claims And The
Governments’ Defenses. ........................................................................ 9 2. Plaintiffs’ Request For The Reports Is Not Too Burdensome..................11 B. Plaintiffs Should Be Allowed Discovery Without Further Delay Of Documents Relating To Implementation Of The Process For Obtaining A Waiver From The Travel Ban. ..........................................................................14 1. Documents Regarding Implementation Of The Process For
Obtaining A Waiver Are Relevant To Plaintiffs’ Claims And The Government’s Defenses. .......................................................................14 2. Plaintiffs’ Request For Waiver-Implementation Documents Is Not Too Burdensome...................................................................................15 CONCLUSION ......................................................................................................................16
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TABLE OF AUTHORITIES

CAS ES

Page (s )

ACLU of Ky. v. McCreary County, 607 F.3d 439 (6th Cir. 2010) .............................................................................................10

Brennan Center v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) ..............................................................................................15

Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of State, No. 17 Civ. 7520, 2018 WL 369783 (S.D.N.Y. Jan. 10, 2018) ...................................... 11, 12

Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004)...................................................................................................... 3, 12

Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Homeland Security, 532 F.3d 860 (D.C. Cir. 2008)....................................................................... 12, 13

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) ...........................................................................................15

FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984) ...........................................................................................13

Int’l Refugee Assistance Project v. Trump, No. 17-2231, 2018 WL 894413 (Feb. 15, 2018) ...................................................................1

In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ...........................................................................................13

Kleindienst v. Mandel, 408 U.S. 753 (1972)............................................................................................................6

Landis v. North American Co., 299 U.S. 248 (1936)............................................................................................................3

Larson v. Valente, 456 U.S. 228 (1982)..........................................................................................................10

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) .............................................................................................10

Nero v. Mosby, No. CV 16-1304, 2017 WL 1048259 (D. Md. Mar. 20, 2017)...............................................4

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N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)..........................................................................................................13
NLRB v. Sears, Roebuck & Co, 421 U.S. 132 (1975)..........................................................................................................15
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)..........................................................................................................10
Williford v. Armstrong World Industries, Inc., 715 F.2d 124 (4th Cir. 1983) ...............................................................................................4
STATUTES 5 U.S.C. § 557(c)(3)(A) ..........................................................................................................14 OTHER AUTHORITIES 16 Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice
and Procedure § 3921.2 (3d ed. 1999) .................................................................................5 Fed. R. Civ. P. 26(b)(1) ..........................................................................................................14 Fed. R. Civ. P. 34(b)(2)(A) .......................................................................................................7 Fed. R. Civ. P. 12(c) .................................................................................................................8
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INTRODUCTION In opposing Plaintiffs’ request to begin discovery, the Government focuses on reasons
why it thinks that waiting for the Fourth Circuit and Supreme Court to rule in the preliminaryinjunction appeals would be the most efficient way to proceed. The Fourth Circuit has now
ruled, and it affirmed this Court’s preliminary-injunction ruling. See Int’l Refugee Assistance Project v. Trump, No. 17-2231, 2018 WL 894413 (4th Cir. Feb. 15, 2018) (“IRAP”). Nothing in
the Fourth Circuit’s decision suggests that these cases will end without Plaintiffs being permitted to take discovery.
The Government contends that Plaintiffs should not be permitted to begin discovery because they have not shown that discovery is warranted. But a plaintiff bears no burden to
prove that discovery should begin. It is the Government’s burden to show that discovery should not proceed, and to do so, the Government must demonstrate that it would suffer more hardship
from discovery beginning than Plaintiffs would suffer if discovery were stayed. The Government cannot make that showing.
The Government’s sole alleged harm—a speculative concern that the scope of discovery may be narrowed by the Supreme Court’s decision on the preliminary-injunction appeal—pales
in comparison to the harm that Plaintiffs will suffer if discovery is further delayed. In affirming this Court’s preliminary-injunction ruling, the Fourth Circuit acknowledged the harm that the
Proclamation causes: On a human level, the Proclamation’s invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between the Designated Countries and our schools, hospitals, and businesses. On a fundamental level, the Proclamation secondguesses our nation’s dedication to religious freedom and tolerance. . . . When we compromise our values as to some, we shake the foundation as to all. 1

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IRAP, 2018 WL 894413, at *18. The Government also contends that Plaintiffs’ planned discovery is irrelevant to these
cases and would be too burdensome. These arguments lack merit. Plaintiffs seek discovery that is plainly relevant to their claims, as evidenced by the fact that the Government has relied on both the reports underlying the Proclamation and the implementation of the waiver provisions to argue that that the Proclamation does not violate the Establishment Clause. Nor are these requests burdensome. The two reports (and four attachments) are a total of only 45 pages. On the waiver implementation, Plaintiffs seek only the types of documents routinely included in an administrative record. In any event, the Government’s arguments as to burden and relevance are the kinds of disputes regularly resolved during discovery; they are not valid reasons for delaying the start of discovery.
Plaintiffs filed their lawsuits four months ago, and it has now been more than two months since the Government missed its deadlines for filing answers or motions to dismiss. For more than two months, the Proclamation has been in effect and Plaintiffs have been unable to litigate their claims. Given the substantial harm that the Proclamation is inflicting on them and their loved ones, Plaintiffs should be permitted to begin discovery on their claims.
ARGUMENT I. Discovery Should Be gin Because The Governme nt Has Not Shown That Discovery
Will Impose A Hardship On It. The Government urges the Court to reject Plaintiffs’ request to proceed with discovery in the interest of efficiency. Reply Br. at 16. The Government has inverted the importance of the considerations that a court must weigh when deciding whether discovery should begin. The Government also fails to respond to Plaintiffs’ showing that waiting for the Supreme Court’s decision is unlikely to achieve the efficiencies imagined by the Government.
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Discovery is not stayed simply because an argument can be made that it would be more efficient to do so. Rather, the Court must weigh the harm to the plaintiff against any efficiencies to be gained through a stay. Where, as here, a plaintiff would be harmed by a stay, the defendant must show that the hardship it would suffer if discovery proceeds outweighs the harm that a stay would cause the plaintiff. The Government does not and cannot make that showing.
A. The Government Bears The Burden Of Demonstrating That Discovery Should Not Proceed.
Contrary to the Government’s assertion, Reply Br. at 23, it is the Government that bears the heavy burden to delay the start of discovery. The Government implicitly concedes this point by acknowledging that Landis v. North American Co., 299 U.S. 248, 256 (1936), provides the “governing legal standard” here. Reply Br. at 11.
The Government notes that, under Landis, a district court has the power to stay discovery if an “ongoing appeal is likely to ‘settle many’ issues and ‘simplify others.’” Reply Br. at 11 (quoting Landis, 299 U.S. at 256 (emphasis added)). But the Government ignores Landis’s guidance on how a district court should decide whether to exercise that authority. The Supreme Court explained that determining whether to permit discovery “calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” 299 U.S. at 254– 55. When “there is even a fair possibility that the stay” will “work damage to” the party opposing it, the moving party “must make out a clear case of hardship or inequity in being required to go forward.” Id. at 255 (emphasis added). The Supreme Court explained, “[T]he burden of making out the justice and wisdom of a departure from the beaten track lay[s] heavily” on the moving party. Id. at 256.
The Government attempts to invert this standard by misconstruing the holding in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004). In Cheney, the Su-
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preme Court held that the district court should have narrowed overly broad discovery requests before forcing the Vice President to invoke executive privilege. Id. at 390 (“In recognition of these concerns, there is sound precedent in the District of Columbia itself for district courts to explore other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas.”) But Cheney does not suggest that a district court is barred from allowing discovery to proceed at all simply because questions of executive privilege may arise. See Nero v. Mosby, No. CV MJG-16-1288, 2017 WL 1048259, at *2 (D. Md. Mar. 20, 2017) (rejecting argument that discovery against public official should have been stayed in light of potential immunity defense and explaining that “a right to immunity is not a right to be free from litigation in general” (internal quotation marks and citations omitted)).
B. The Government Has Not Carried Its Heavy Burden Of Showing That Plaintiffs Should Be Pre vented From Be ginning Discovery.
The Fourth Circuit recognizes that the primary concern when considering whether to permit discovery is the potential harm to plaintiffs, and has applied Landis to hold that plaintiffs should be allowed to litigate their claims even where the court has acknowledged that proceeding with discovery would create inefficiency. See Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir. 1983). This Court should reach the same result here, both because the harm to Plaintiffs is so high and because the Government’s argument as to efficiencies that would be achieved through a stay is speculative and overstated.
In Williford, the Fourth Circuit held that “the party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Id. at 127. In determining that the standard to justify a stay of discovery had not been met, the Fourth Circuit explained: “Of particular significance in balancing the competing interests of
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the parties in the case at bar are the human aspects of the needs of a plaintiff in declining health as opposed to the practical problems imposed by the” parallel litigation. Id. at 127–28. The court of appeals recognized that allowing the plaintiff to pursue his claim could require relitigating the claim, but the mere inefficiency of re-litigation was insufficient to support a stay that “would work manifest injustice” to the plaintiff. Id. at 128.
This case presents even more compelling circumstances than Williford. The narrow discovery Plaintiffs seek while awaiting the Supreme Court’s ruling is unlikely to require reconsideration later because the Supreme Court is unlikely to address discovery-related issues. See infra at 6. And there is “more than a fair possibility” that delaying discovery will “work damage” to Plaintiffs. Plaintiffs suffer each day that they are precluded by the challenged Executive Order from reuniting with their loved ones. This ongoing injury is particularly acute for Plaintiffs who are separated from sick and elderly loved ones, such as Zakzok Plaintiff Sumaya Hamadmad, whose father-in-law in Syria is 81 years old and has been diagnosed with cancer. Hamadmad Decl. ¶¶ 11–12, Zakzok ECF No. 6-3. Some Plaintiffs are themselves in need of assistance from their family members, such as IAAB Plaintiff Jane Doe #5, who is 79 years old, confined to a wheelchair, and indefinitely separated from her son in Iran. Jane Doe #5 Decl. ¶ 6, IAAB ECF No. 26-7. And all Plaintiffs whose lives and intimate relationships have been put on hold by the Proclamation and related litigation have also been harmed and will continue to suffer such harm. See, e.g., Jane Doe #3 Decl. ¶¶ 3, 6, Zakzok ECF No. 6-6 (Plaintiff is separated from her fiancé).
In contrast, the sole hardship asserted by the Government is that the parties will engage in discovery and motions practice, and there is a possibility that subsequent appellate decisions might limit their scope. That risk is always present when a party seeks emergency or preliminary
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relief, and yet as a general rule cases are not stayed pending appeal of an interlocutory order. See 16 Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3921.2 (3d ed. 1999) (an interlocutory appeal of a preliminary injunction “does not defeat the power of the trial court to proceed further with the case”).
The Government also significantly overstates the likelihood that the Supreme Court will limit the scope of discovery and related motions, and it is incorrect that the Supreme Court could render discovery unnecessary. The complaints assert many claims—both constitutional and statutory—that are not part of the preliminary injunction proceedings. And there are many grounds on which the Supreme Court could base its decisions—for example, by agreeing or disagreeing with lower courts that the plaintiffs are likely to prevail on the merits—that would have no effect on the ultimate merits outcome. Further, the Government speculates that all of Plaintiffs’ constitutional claims might be decided in the preliminary-injunction appeal because the Government will argue that Kleindienst v. Mandel, 408 U.S. 753 (1972), applies to all constitutional claims. Reply Br. at 12. But, as explained in Plaintiffs opening brief, even if the Supreme Court agrees with the Government’s interpretation of Mandel, Plaintiffs may take discovery and prove their constitutional claims under the Government’s proposed standard. Pls. Br. at 20–21. The Government does not respond to this point, nor to Plaintiffs’ argument that their APA claims are not governed by Mandel.
In short, the equities favor permitting discovery to begin now. Plaintiffs would suffer substantial harm from further delay in resolving their claims. Those harms vastly outweigh any burden imposed on the Government to defend against those claims. That is especially true given that discovery will be necessary in the future because the Supreme Court is unlikely to conclusively decide all of Plaintiffs’ claims—many of which are not even before that Court.
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C. Pe rmitting Discovery Will Allow The Case s To Progre ss More Quickly Toward Final Judgment.
The Government attempts to downplay the clear benefits of beginning discovery now by arguing that it “is unlikely to bring these cases closer to final judgment.” Reply Br. at 14. This too is incorrect. Discovery delays will inevitably delay final resolution of Plaintiffs’ claims. Plaintiffs should be allowed to begin discovery now to ensure that their claims can be resolved as soon as practicable.
The Government’s argument that a months-long stay will not affect the timing of a final judgment in this case is based on its speculation that the Supreme Court will provide guidance on discovery-related issues. Id. at 15. That is a remote possibility at best.
Should discovery proceed, the Government asserts that it intends to invoke the presidential-communications and deliberative-process privileges to refuse production of the discovery sought by Plaintiffs. Id. at 22–23. There is no reason to think that the Supreme Court will enter a ruling on those privilege issues. They have been neither briefed in the preliminary-injunction proceedings nor addressed in any of the prior rulings in the travel-ban litigation in this matter or in Trump v. Hawaii, No. 17-965 (U.S.), which is now before the Supreme Court. Without a record on which to rule, the Supreme Court is unlikely, in a case it is reviewing on a preliminary injunction, to provide guidance on privileges not yet even invoked by the Government regarding discovery on the merits in the trial court.
Allowing discovery to begin now will help the cases progress more quickly toward final judgment because the parties can address and resolve the Government’s privilege assertions while the Supreme Court proceedings are pending. If Plaintiffs are allowed to serve discovery requests now, the Government would have 30 days to respond. See Fed. R. Civ. P. 34(b)(2)(A). If the Government objects to the discovery requests—by claiming privilege or on any other
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ground—Plaintiffs can evaluate the objections and determine whether to challenge the Government’s response through a motion to compel. This determination, and any necessary briefing, can occur during the next few months, while the preliminary-injunction ruling is subject to further review.
The parties would need to go through the same process later if this Court stays discovery until after the Supreme Court rules. Waiting to begin this process will undoubtedly prolong resolution of Plaintiffs’ claims—and the harm to the Plaintiffs—unnecessarily. Under the most favorable potential timeline, the Supreme Court will decide the preliminary injunction appeal in the Hawaii matter by the end of June. Pls. Br. at 7. If discovery is stayed, the Plaintiffs will not be able to issue their initial discovery requests until July. The Government would have 30 days to respond. And Plaintiffs would need to evaluate whether to challenge the Government’s objections. There is every reason to believe that the stay thus would result in at least a four-month delay in these proceedings.
Finally, the Government contends that allowing discovery to proceed in the trial court in the normal course now will not lead to a quicker resolution because the parties would have to rebrief the Government’s motion to dismiss after the Supreme Court’s ruling “to ensure this Court’s prior rulings are consistent with the articulated framework.” Reply Br. at 15. But briefing on a motion to dismiss does not determine the timing of discovery. Pls. Br. at 22–23. Even if the Government had grounds to file a Rule 12(c) or other motion based on the Supreme Court’s decision, the parties would still be moving the case closer to final resolution by having begun discovery and having briefed any necessary discovery-related issues.1
1 In Plaintiffs’ view, the Government is in no different position here than any other defendant that believes that it is unlikely to prevail on a pre-answer motion to dismiss under current law and precedent. The Government should move or answer the complaint in a timely fashion as re(continued…)
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II. The Gove rnme nt’s Challe nges To The Discovery Re que sts Lack Merit And Are Premature In Any Event. The Government opposes discovery on the two narrow categories of documents that
Plaintiffs seek: (1) the July 2017 and September 2017 reports (with attachments) on which the Proclamation is based (“Reports”), and (2) documents related to implementation of the waiver process under the Proclamation. Contrary to the Government’s assertions, these initial discovery requests are relevant to Plaintiffs’ claims, as well as to the Government’s defenses, and are not burdensome. The Government provides no persuasive reason for further delaying discovery on these topics.
A. Plaintiffs Should Be Allowed Discovery Of The Reports Without Further Delay. 1. The Reports Are Relevant To Plaintiffs’ Claims And The Governments’ Defenses.
The Government opposes Plaintiffs’ planned discovery of the Reports on the ground that they are irrelevant to the case, Reply Br. at 21, but it ignores virtually every argument that Plaintiffs have made concerning the relevance of the documents. By failing to address the bulk of Plaintiffs’ arguments, the Government effectively concedes that the Reports are relevant.
First, Plaintiffs argued that they are entitled to this discovery because the Reports are the cornerstone of the Government’s defense to this action. Pls. Br. at 24. As Plaintiffs explained, the Reports are critical to the Government’s defense to the Establishment Clause claims—and therefore are central to the case—because, in the Government’s view, they demonstrate that the
quired by the Federal Rules of Civil Procedure. The Rules do not connect the time for discovery to a motion to dismiss, and they provide opportunities for a party to challenge the sufficiency of a complaint after an answer is filed. See Pls. Br. at 22. However, if the Court is not inclined to hear a motion to dismiss or require an answer from the Government before the Supreme Court rules, Plaintiffs are willing to confer regarding a scheduling order that permits discovery to go forward now while delaying the Government’s obligation to answer or move until a later date.
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Proclamation’s purpose is wholly separate from EO-2’s unconstitutional religious purpose. Id. The Government has no response to this point.
Second, Plaintiffs argued that they are entitled to this discovery because the Reports are relevant to claims that are not part of the preliminary-injunction appeal. Id. at 26. Discovery of the Reports is clearly relevant to Plaintiffs’ equal-protection claims, which depend on issues of “discriminatory intent or purpose” and therefore require the factfinder to consider the “administrative history” and “the specific sequence of events leading up [to] the challenged decision.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–68 (1977). Again, the Government has no response.
Third, Plaintiffs argued that they are entitled to this discovery because the Reports are relevant to Establishment Clause grounds for relief that were not decided in the preliminaryinjunction proceedings. Pls. Br. at 26. The reasonable-objective-observer test—the test that this Court applied—is but one of many applicable Establishment Clause tests. See, e.g., Mellen v. Bunting, 327 F.3d 355, 370–75 (4th Cir. 2003). The Reports are relevant to Plaintiffs’ claim of denominational preference, for example, which requires a fact-finder to determine whether the Proclamation “is closely fitted to further [a compelling governmental] interest.” Larson v. Valente, 456 U.S. 228, 247 (1982). Yet again, no response.
Fourth, Plaintiffs argued that they are entitled to this discovery because the Reports are relevant to the Plaintiffs’ claims on the merits under the Establishment Clause’s reasonableobjective-observer test, a test that has been addressed only as a preliminary matter under a likelihood analysis. Pls. Br. at 26. As Plaintiffs explained, application of this test does not preclude discovery into the Government’s purpose. Id. To the contrary, in McCreary itself, “[a]fter the Supreme Court issued its opinion, the case returned to the district court for further proceedings”
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in which the plaintiffs took “discovery as to the factual details and motivation for the sequence of the [challenged] displays.” ACLU of Ky. v. McCreary Cty., 607 F.3d 439, 443–44 (6th Cir. 2010) (emphasis added).
The Government does not dispute that discovery is typically permissible in Establishment Clause cases, even when a claim invokes the reasonable-objective-observer test. Instead, the Government contends that Plaintiffs waived their right to seek discovery based on statements made during the preliminary-injunction hearing. Reply Br. at 21. The statements of counsel cannot reasonably be interpreted as waiving Plaintiffs’ right to seek discovery during litigation of the merits of their claims. Moreover, the statements related to the issue before the Court during the preliminary-injunction hearing: whether the Court could enter an injunction without reviewing the Report. The Court did not inquire about the permissible scope of discovery for Plaintiffs’ claims on the merits, and counsel’s statement did not address that issue. Regardless, the statement applied only to the objective-observer test, and even the Government’s misinterpretation of that statement does not negate the other points discussed above.
In short, the Reports are plainly relevant to the claims and defenses in this case. Having put the Reports at the center of its defense of the Proclamation, the Government cannot now contend that they are irrelevant and beyond the scope of discovery.
2. Plaintiffs’ Request For The Reports Is Not Too Burdensome. The Government opposes Plaintiffs’ plan to request the Reports on the ground that this discovery would be “tremendously burdensome.” Reply Br. at 16. But the supposed burden arises entirely from the effort required by the Government’s own plan to resist producing the Reports. The Government should not be permitted to prevent Plaintiffs from seeking the Reports simply because it wants neither to produce them nor to justify withholding them.
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The Government does not—and cannot—contend that the discovery requests themselves are burdensome. The Government does not argue that it would be burdensome to search for responsive documents. And indeed, the Government has already identified the six responsive documents—two reports and four attachments. See Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of State, No. 17 Civ. 7520, 2018 WL 369783, at *1 (S.D.N.Y. Jan. 10, 2018). Nor can the Government argue that it would be burdensome to review the documents for privilege. The documents total only 45 pages and have already been reviewed for privilege. See Decl. of Mark Mosier, Ex. A (Feb. 9, 2018 FOIA Response).
Instead, the Government contends that it would be too burdensome for the Government to defend whatever privilege determinations it makes regarding requested discovery. The Government again bases its argument on Cheney, 542 U.S. 367, but once again that decision does not support the Government’s position. In Cheney, the Supreme Court addressed the problem created by “overly broad discovery requests,” and held that the Vice President could raise separationof-powers arguments in mandamus proceedings without first “critiquing the unacceptable discovery requests line by line” to assert privilege. Id. at 388–89.
Plaintiffs do not plan to seek discovery directly from the President. They intend to seek discovery from the State Department, which has the Reports and attachments. See Brennan Ctr., 2018 WL 369783, at *1. Far from “ask[ing] for everything under the sky,” as in Cheney, 542 U.S. at 387, Plaintiffs seek only the 45 pages that the Government has already identified as the relevant Reports and attachments. The D.C. Circuit has refused to extend Cheney to circumstances like those present here, where document requests are narrowly tailored and directed to a federal agency. In such cases, discovery requests will not “require the President, Vice President, or their staffs to sort through mountains of files for responsive documents while ‘critiquing the
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unacceptable discovery requests line by line.’” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Security, 532 F.3d 860, 867 (D.C. Cir. 2008) (quoting Cheney, 542 U.S. at 386). This Court should do the same.
Finally, the Government contends that this Court should not permit Plaintiffs to seek discovery of the Reports because Plaintiffs’ counsel are involved in the FOIA litigation over the Reports. Reply Br. at 24. Plaintiffs’ right to conduct discovery should not be limited based on their counsel’s involvement in another case on behalf of other clients. The Government cites no authority to support this position. Limiting Plaintiffs’ discovery based on their counsel’s involvement in other cases would be particularly problematic here, given that the FOIA court will not decide the same privilege issue that will be before this Court. In the FOIA litigation, the court will decide the Government’s claim of privilege vis-à-vis the general public’s right of access to the Reports. See Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220–21 (1978). In contrast, because the Government indicates that it intends to invoke qualified privileges, this Court will consider factors such as the importance of the documents to Plaintiffs’ claims and Plaintiffs’ inability to get the same information from other sources. See FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (recognizing that deliberative process privilege can be overcome by factors demonstrating the necessity of discovery); In re Sealed Case, 121 F.3d 729, 754–55 (D.C. Cir. 1997) (same for presidential communication privilege).
This Court should not prevent Plaintiffs from seeking discovery on the ground that the Government has indicated that it intends to assert privilege over the Reports and would consider it burdensome to defend that choice. Agencies withholding documents based on privilege are routinely required to defend their privilege determinations, see, e.g., Citizens for Responsibility & Ethics in Washington, 532 F.3d at 868, and the Government should be required to do so here.
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B. Plaintiffs Should Be Allowe d Discovery Without Furthe r De lay Of Documents Relating To Implementation Of The Process For Obtaining A Waiver From The Travel Ban. 1. Documents Regarding Implementation Of The Process For Obtaining A Waiver Are Relevant To Plaintiffs’ Claims And The Government’s De fe ns es.
The Government also opposes Plaintiffs’ planned requests for documents related to implementation of the Proclamation’s waiver provisions on the ground that these documents are irrelevant to this case. Those arguments fail.
The Government expressly relied on the process that it asserts allows an individual to obtain a waiver of the travel ban to argue that the Proclamation’s primary purpose was not antiMuslim animus. Opp. to Prelim. Inj. 40. And in opposing Plaintiffs’ motion for a preliminary injunction, the Government argued that the availability of “case-by-case waivers” demonstrates that “[n]either the Proclamation’s text nor its operation evidence an intent to exclude Muslims.” Id.
The Government does not dispute that it relied on the availability of the waiver process to argue that the Proclamation complies with the Establishment Clause. Instead, the Government attempts to dismiss its own prior argument by contending that it “was made as an alternative argument.” Reply Br. at 26. But the Government cites no authority to suggest that this distinction makes any difference for purposes of discovery. Plaintiffs are entitled to conduct discovery relevant to all of the Government’s defense theories, not just the ones that the Government declares to be its main arguments.
The Government also contends that discovery should not be permitted because Plaintiffs have not yet established a “concrete foundation” to demonstrate that the waiver process operates differently from what is set forth in the Proclamation. Id. This argument is based on a fundamental misunderstanding of how discovery operates. Plaintiffs need not present evidence of how
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the Government’s claimed waiver process is working to obtain evidence about how it is working. That sort of rule would create obvious circularity problems that would defeat the purposes of discovery. Instead, Plaintiffs may seek discovery “that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). That test is satisfied for evidence related to the Government’s process of implementing the waiver because, as the Government concedes, it relies on waiver implementation in defending against Plaintiffs’ Establishment Clause claims.
2. Plaintiffs’ Request For Waiver-Implementation Documents Is Not Too Burdensome.
The Government also opposes discovery of documents related to implementation of the waiver process on the ground that it would be too burdensome. But the Government does not contend that producing the requested documents would be burdensome. Nor could it: The requests seek the types of documents that government agencies must include in the administrative record in virtually all APA litigation. See 5 U.S.C. § 557(c)(3)(A). Instead, the Government contends that it may withhold production of these documents, which could lead to motions practice, and that motions practice could be burdensome. Reply Br. at 28.
The Government is vague about what privilege it might invoke, describing it only as a privilege protecting “law-enforcement sensitive information.” Id. Whatever privilege the Government may have in mind, it cannot justify the Government’s apparent refusal to disclose its interpretation of the Proclamation’s waiver provisions. The Proclamation requires the Secretary of State and the Secretary of Homeland Security “to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” Proclamation § 3(c). The Government’s adoption of guidance for the waiver process does not mean that an agency is “permitted to develop a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a
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veil of privilege.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980); see also Brennan Ctr. v. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012) (government cannot claim privilege over “an ‘opinion[] [or] interpretation[] which embod[ies] the agency’s effective law and policy,’ in other words, its ‘working law’” (quoting Nat’l Labor Relations Bd. v. Sears, Roebuck & Co, 421 U.S. 132, 153 (1975))); Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 360 (2d Cir. 2005) (recognizing that government cannot “adopt a legal position while shielding from public view the analysis that yielded that position”).
The Proclamation requires the Departments of State and Homeland Security to provide guidance on how the Proclamation’s waiver provisions operate. Plaintiffs and the rest of the world—including the 150 million Muslims who categorically will be denied entry into the United States unless they satisfy the waiver criteria—are entitled to know the law governing visa applications under the Proclamation. The Government should not be permitted to oppose discovery of that guidance on the ground that it would be too burdensome to defend its decision to keep this law secret.
CONCLUSION Plaintiffs’ motion for entry of a scheduling order that requires the Government to answer or otherwise respond to the complaints within 14 days and permits discovery to begin immediately should be granted.

Dated: February 16, 2018
Johnathan Smith* Sirine Shebaya (Bar # 07191) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035

Respectfully submitted,
___________/s/_________ Mark H. Lynch (Bar # 12560) Mark W. Mosier* José E. Arvelo* John W. Sorrenti* Marianne F. Kies (Bar # 18606)
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Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) Eric Rothschild* Andrew Nellis*^ AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 20005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org rothschild@au.org nellis@au.org

COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com jarvelo@cov.com jsorrenti@cov.com mkies@cov.com
Kathryn E. Cahoy* COVINGTON & BURLING LLP 333 Twin Dolphin Dr., Suite 700 Redwood Shores, CA 94065 Tel: (650) 632-4735 Fax: (650) 632-4800 kcahoy@cov.com

Rebecca G. Van Tassell* COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, California 90067 Tel: (424) 332 4800 Fax: (424) 332-4749 RVanTassell@cov.com

Counsel for IAAB Plaintiffs

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Case 8:17-cv-02921-TDC Document 67 Filed 02/16/18 Page 22 of 22

Faiza Patel* Michael Price* Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 Tel.: (646) 292-8335 Fax: (212) 463-7308 faiza.patel@nyu.com michael.price@nyu.com
Jethro Eisenstein* Profeta & Eisenstein 45 Broadway, Suite 2200 New York, New York 10006 Tel.: (212) 577-6500 Fax: (212) 577-6702 jethro19@gmail.com
Lena F. Masri* Gadeir Abbas* Council on American-Islamic Relations (CAIR) 453 New Jersey Avenue SE Washington, D.C. 20003 Tel.: (202) 488-8787 Fax: (202) 488-0833 lmasri@cair.com gabbas@cair.com

___________/s/_________ Charles E. Davidow (Bar # 06516) Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street NW Washington, DC 20006-1047 Tel.: (202) 223-7300 Fax: (202) 223-7420 cdavidow@paulweiss.com
Robert A. Atkins* Liza Velazquez * Andrew J. Ehrlich* Steven C. Herzog* Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel.: (212) 373-3000 Fax: (212) 757-3990 ratkins@paulweiss.com lvelazquez@paulweiss.com aehrlich@paulweiss.com sherzog@paulweiss.com
Counsel for Zakzok Plaintiffs

* Pro hac vice. ^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

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 Case 8:17-cv-02921-TDC Document 78 Filed 11/02/18 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS, et al.
Plaintiffs,
v.

Case No. 17-cv-02921 Judge Chuang

DONALD J. TRUMP, in his official capacity as President of the United States, et al.
Defendants.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. Plaintiffs bring this case to challenge President Donald J. Trump’s latest attempt to implement an unlawful Muslim ban, this time through the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (“the Proclamation”) issued on September 24, 2017 (Attachment A to this Complaint). Plaintiffs are United States citizens and Lawful Permanent Residents with bona fide relationships with current or potential applicants for immigrant and non-immigrant visas to the United States from the countries affected by the Proclamation, as well as two organizations of similarly situated individuals. 2. President Trump has been consistent and clear about his intention to restrict Muslims from entering the United States. Beginning on December 7, 2015, he called for “a total and complete shutdown of Muslims entering the United States.” Throughout the remainder of his campaign, he pledged to follow through on this promise in terms that explicitly discriminated against Muslims.

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3. In the first days of his presidency, President Trump sought to fulfill this campaign promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “First Executive Order”). On its face, the First Executive Order restricted travel to the United States for 90 days for nationals of seven countries, all Muslim-majority countries. It also put in effect a world-wide ban on refugees, with certain exceptions for those of minority religious faiths. The First Executive Order spurred significant litigation in several district courts and was enjoined on a national basis on February 3, 2017, on a finding that the plaintiffs showed they were likely to succeed on the merits of their constitutional challenges, or, in the alternative, that “they have established at least serious questions going to the merits of their claims and the balance of equities tips sharply in their favor.” Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017).
4. On March 6, 2017, President Trump rescinded and replaced the First Executive Order with Executive Order 13780 (the “Second Executive Order”). The Second Executive Order had the same purpose and effect as the first: Both were designed to, and did, prevent Muslims from entering the United States. The major provisions of the two orders were nearly identical. Both included language reflecting bigotry, implicitly associating Muslims with violence and terrorism. The Second Executive Order suffered from the same fundamental constitutional and statutory defects as the first, so it too was blocked by the courts. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc). The Supreme Court narrowed these two preliminary injunctions to enjoin the application of the relevant provisions with respect to visitors and immigrants to the
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United States only if they have a bona fide relationship with a U.S. individual or entity. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).1
5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members. The Proclamation also purported to include a waiver provision, under which applicants otherwise barred by its provisions would be allowed to enter the United States. Yet this waiver process has proved to be a sham: neither the State Department nor DHS has issued any meaningful guidance, there is no application process, and consular officials are directed to deny waivers in almost every case.
6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review, including North Korea and Venezuela and adding an ineffectual waiver provision, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.
7. The Proclamation penalizes the nationals of the targeted Muslim-majority countries without adequate determinations or findings as to a detrimental impact on the interests
1 On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, 138 S. Ct. 353, 2017 WL 4518553 (Oct. 10, 2017).
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of the United States of any of those particular nationals, and it harms U.S. citizens and U.S. Lawful Permanent Residents with family or business ties to these countries—particularly those with bona fide relationships with current or potential applicants for immigrant and nonimmigrant visas to the United States from the countries affected by the Proclamation—as well as organizations of similarly situated individuals.
8. The Proclamation, like the First and Second Executive Orders that preceded it, violates fundamental, dearly held constitutional protections. It violates the guarantees that the government will not establish, favor, discriminate against, denigrate, or condemn any religion; the guarantee of freedom of speech; and the guarantee of equal protection of the law. It betrays our nation’s most central principles and forsakes our common heritage as a country founded in part on the principle of freedom from religious persecution. The Proclamation states that it is necessary to protect the country, but this purported national-security justification is a pretext. The Proclamation is irrational as a national-security measure and is inexplicable by anything but animus toward Muslims.
9. As a result of the Proclamation, the individual Plaintiffs and some members of Plaintiff Iranian Students’ Foundation (“ISF”) are cut off from their family members, unable to have their relatives visit under tourist visas or join them as immigrants to the United States. Specifically, some members of the community ISF serves will not be able to have their families attend commencement celebrations in the winter and spring. ISF also expects a reduction in membership because the Proclamation will make it difficult for future Iranian students to come to the University of Maryland and join the group. The Proclamation violates the Establishment Clause and due process and equal protection guarantees of the Fifth Amendment. Plaintiffs Iranian Alliances Across Borders (“IAAB”) and ISF suffer further harms to their
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constitutionally-protected rights to engage in the free flow of ideas and association under the

First Amendment.

PARTIES

A.

The Plaintiffs

10. IAAB is a national organization, founded in 2003 by Iranian-American university

students. Its mission is to strengthen the Iranian diaspora community through leadership and

educational programming that encourages collaboration and solidarity across borders and

between communities. IAAB organizes camps for youths, regional summits, Persian-language

educational events, international conferences on the Iranian diaspora, and other activities, and in

so doing is in the practice of inviting prominent scholars and other participants from outside the

country, including from Iran, to the United States for its events. IAAB affiliates through its

Campus Action Network with a national network of affiliated Iranian-American student groups

and representatives, including groups at the University of Maryland, College Park, one of the

biggest and most active Iranian-American student groups in the nation, and a group at the

University of Maryland in Baltimore.

11. ISF is an affiliate of IAAB. It is a student group at the University of Maryland,

College Park and is one of the oldest Iranian student organizations in the country. ISF has over

30 active student members at any given time, with many more participants attending events and

meetings throughout the year. Most of ISF’s members are first generation Iranian-Americans,

but some members hold student visas and others are non-Iranian. ISF holds weekly general body

meetings, fundraising events, and social events for students. It also regularly organizes

conferences and events with attendees and leaders from across the country. ISF hosts cultural

celebrations for the Iranian community that are attended by University students, alumni, and

members of the community. ISF provides its members and prospective members with 5

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opportunities to meet others with similar interests and backgrounds. It also seeks to keep the rich Persian history and culture alive for the descendants of that nation and all interested in the culture.
12. Doe Plaintiff #1 is a U.S. citizen of Iranian origin who fled religious persecution in Iran. From 2015 to 2016, she lived in Bethesda, Maryland, and was looking forward to building her life there. She met her now-husband in 2015, and they married in 2016. Because her husband does not have permission to reside in the United States, she relocated to the United Arab Emirates on a temporary basis to live with him while his visa application to the United States was being processed. She submitted an I-130 form for her husband in June 2016, and the request was approved on September 20, 2017. As a result of the Proclamation, however, his visa has now been suspended and the couple will be indefinitely banned from building their life together in Maryland as they had hoped. Their residency status in the United Arab Emirates is uncertain; they can never receive permanent residency and must continue to reapply for temporary residency every three years. They would face persecution if forced to return to Iran.
13. Plaintiff Ashley Kiani is a U.S. citizen of Iranian origin.2 She was born in the United States and has lived in Maryland ever since. She graduated from the University of Maryland, College Park, in 2017 and continues to live and work in Maryland. In February 2017, she applied for a K-visa for her fiancé, who is Iranian. He completed his interview at the U.S. Embassy in Ankara, Turkey on August 4, 2017, and she is awaiting a final response on his application. Because of the operation of the Proclamation, she is forced to live apart from the love of her life.
2 Ms. Kiani was identified as Jane Doe #2 in the original complaint. She no longer intends to proceed anonymously.
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14. Doe Plaintiff #3 is a U.S. citizen of Iranian origin. She became a U.S. citizen in 1994. She has lived in Montgomery County, Maryland for many years and has been a specialeducation teacher for Montgomery County Public Schools since 2006. She has a pending I-130 application for her younger brother, who is the only remaining family member in Iran. Her mother, father, and two brothers are all in the United States. As a result of the Proclamation, processing of her petition has been suspended and she has been indefinitely banned from reuniting here with her brother.
15. Doe Plaintiff #5 is an elderly Iranian national and a Lawful Permanent Resident of the United States, who resides in Montgomery County, Maryland.3 She has been in the United States since 2010 and lives with her husband and her U.S. citizen son. She applied to sponsor her second son shortly after she became a resident, and her I-130 application was approved in November 2010. In December 2016, her son received a letter scheduling his interview at the U.S. Embassy in Ankara, Turkey for February 5, 2017. Because of the First Executive Order, that interview was canceled. After the First Executive Order was enjoined by the courts, his interview was rescheduled for March 20, 2017. He completed the interview and is now awaiting final approval to come to the United States. Doe Plaintiff #3 is in desperate need of her son’s presence, as she is wheelchair-bound. Her husband, who is 90 years old, also has significant health problems. Her U.S. citizen son is their only caretaker, and they all need the assistance of her other son. As a result of the Proclamation, Doe Plaintiff #3 has been indefinitely banned from reuniting with her son.
3 Doe Plaintiff #4 from the original complaint is no longer pursuing her claims. We have maintained the numbering of the other Doe Plaintiffs to avoid confusion.
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16. Doe Plaintiff #6 is an Iranian national and a Lawful Permanent Resident of the

United States, who resides in Maryland. He has lived in the United States for six years and

works as an engineer. His wife, who also resides in Maryland, is Iranian and is employed at the

National Institutes of Health as a biochemistry researcher. She has a Ph.D. in Chemistry from

Johns Hopkins University. They have together made their home in Maryland. His mother-in-

law has applied for a business/tourist (B1/B2) visitor visa in order to come visit them, and had

her interview at the U.S. Embassy in Dubai on January 5, 2017. On December 19, 2017, Doe

Plaintiff #4’s mother-in-law received a form letter from the U.S. Consulate signed by the

“Nonimmigrant Visa Unit,” informing her (i) that a “consular official found [her] ineligible for a

visa under Section 212(f) of Immigration and Nationality Act, pursuant to Presidential

Proclamation 9645”; and (ii) that “[t]aking into account the provisions of the Proclamation, a

waiver will not be granted in your case.” The decision not to grant a waiver to his mother-in-law

was made before she even had an opportunity to apply for a waiver. Thus, because of the

Proclamation, and despite the waiver provision, Doe Plaintiff #4’s mother-in-law is indefinitely

banned from coming to the United States to visit her daughter and son-in-law.

B.

The Defendants

17. Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity. President Trump issued the Proclamation that is the subject of this lawsuit.

18. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and is sued in

her official capacity. The Department of Homeland Security (“DHS”) is an executive

department of the United States government, headquartered in Washington, DC. DHS was

involved in preparing a report that was cited in the Proclamation and is assigned several

responsibilities regarding implementation and enforcement of the Proclamation. Secretary

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Nielsen is responsible for DHS’s administration of the Immigration and Nationality Act (“INA”) and its implementation and enforcement of the Proclamation.
19. Defendant Kevin McAleenan is the Commissioner of U.S. Customs and Border Protection and is sued in his official capacity. The U.S. Customs and Border Protection (“CBP”) is an administrative agency within DHS, headquartered in Washington, DC. The Proclamation assigns CBP various responsibilities regarding implementation and enforcement. Acting Commissioner McAleenan is responsible for CBP’s implementation of the INA and its implementation and enforcement of the Proclamation.
20. Defendant L. Francis Cissna is the Director of U.S. Citizenship and Immigration Services and is sued in his official capacity. The U.S. Citizenship and Immigration Services (“USCIS”) is an administrative agency within DHS, headquartered in Washington, DC. USCIS oversees lawful immigration to the United States. Acting Director McCament is responsible for USCIS’s implementation of the INA and its implementation and enforcement of the Proclamation.
21. Defendant Michael R. Pompeo is the Secretary of State and is sued in his official capacity. The Department of State is an executive department of the United States, headquartered in Washington, DC. The State Department consulted on the report prepared by DHS and is responsible for issuing visas and implementing the Proclamation. The Proclamation assigns the State Department various responsibilities regarding implementation and enforcement. Secretary Pompeo oversees the State Department’s activities with respect to the INA and its implementation and enforcement of the Proclamation.
22. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is sued in his official capacity. The Department of Justice (“DOJ”) is an
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executive department of the United States, headquartered in Washington, DC. The Proclamation assigns the Department of Justice various responsibilities regarding implementation and enforcement. Attorney General Sessions oversees the DOJ’s activities with respect to the INA and the implementation and enforcement of the Proclamation.
JURISDICTION AND VENUE 23. The Court has federal question jurisdiction under 28 U.S.C. § 1331. 24. The Court has authority to award declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 and the Administrative Procedure Act, 5 U.S.C. § 706. 25. Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(C).
STATEMENT OF FACTS A. President Trump’s Express Intent to Target Muslims for Prohibition
Against, or Restrictions on, Entry into the United States 26. President Donald Trump made his intent to impose a “Muslim ban” against those entering the United States a central tenet of his campaign for President and since assuming office, he has worked to give effect to this Muslim ban through various measures, culminating in the Proclamation. 27. In a series of interviews in the fall of 2015, Mr. Trump stated that he would require Muslims in the United States to register with the government, and he insisted that the country had “absolutely no choice” but to shut down mosques. 28. On December 7, 2015, after the attack in San Bernardino, California, Mr. Trump released a written statement on his campaign website calling for a “total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is
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going on.”4 This original statement invoked invidious stereotypes of Muslims, suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women. He suggested that barring immigration by Muslims was necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”5
29. When asked that same day how customs officials would apply such a ban, Candidate Trump said, “[T]hey would say, are you Muslim?” In response, a reporter asked, “[I]f they say yes, they would not be allowed in the country?” Candidate Trump responded, “That’s correct.”6
30. This intended Muslim ban became a central talking point of the Trump campaign, promoted by Mr. Trump and his surrogates at campaign events across the country.
31. On January 14, 2016, when asked whether he had rethought his “comments about banning Muslims from entering the country,” Mr. Trump responded “No.”7
4 Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration, DonaldJTrump.com (Dec. 7, 2015), https://web.archive.org/web/20170508151734/ www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration. 5 Id. 6 Jenna Johnson & Sean Sullivan, Donald Trump explains how his ban on Muslims entering the U.S. would work, WASH. POST (Dec. 8, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/08/donald-trump-explains-how-his-ban-on-muslims-entering-the-u-s-wouldwork/?utm_term=.c0bda2a45d8b. 7 Gerhard Peters & John T. Wooley, Presidential Candidate Debates: Republican Candidates Debate in North Charleston, South Carolina, The American Presidency Project (Jan. 14, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395.
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32. On March 9, 2016, Mr. Trump stated in a televised interview that “I think Islam hates us . . . and we can’t allow people coming into this country who have this hatred of the United States.”8
33. On June 13, 2016, after an attack on a nightclub in Orlando, Florida, Mr. Trump gave a speech in which he said, “I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.” He went on to clarify that he blamed Islam, writ large, for such attacks: “We cannot continue to allow thousands and thousands of people to pour into our country, many of whom have the same thought process as this savage killer.”9 He blamed “Muslim communities” for failing to “turn in the people who they know are bad—and they do know where they are.”10
34. On July 17, 2016, Mr. Trump was asked to respond to criticism by his running mate (now the Vice President) that a ban on Muslims entering the country would be unconstitutional. He responded, “So you call it territories, okay? We’re gonna do territories.”11
35. On July 24, 2016, Mr. Trump was asked if this statement constituted a “rollback” from his intended Muslim ban. His answer was “I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were
8 Exclusive Interview by Anderson Cooper with Donald Trump, Presidential Candidate, in Miami, Fl. (Mar. 9, 2016), http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. 9 Transcript: Donald Trump’s national security speech, Politico (Jun. 13, 2016, 3:06 PM), http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273. 10 Id. 11 Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (Jul. 17, 2016), http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/.
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so upset when I used the word Muslim. Oh, you can’t use the word Muslim. . . . And I’m okay with that, because I’m talking territory instead of Muslim.”12
36. On October 9, 2016, during a televised presidential debate, Mr. Trump stated that “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.”13
37. These remarks signal Mr. Trump’s search for a pretext to disguise blatant animus toward Muslims and presage how his administration would carry out his unconstitutional measure by dressing it up as a bona fide national security measure.
B. The First Executive Order 38. On January 27, 2017, a week after assuming office, President Trump signed Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”14 At the time of signing, his original December 7, 2015, statement calling for a “total shutdown” of Muslim entrants remained live on his campaign website. 39. At the signing ceremony, President Trump read the order’s title, and stated, “We all know what that means.”15 The next day, President Trump’s advisor and vice chair of his transition team, Rudy Giuliani, stated that the First Executive Order was the result of an
12 Interview by Chuck Todd with Donald Trump, Presidential Candidate on Meet the Press (Jul. 24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016n615706. 13 Gerhard Peters & John T. Wooley, Presidential Debate at Washington University in St. Louis, Missouri, The American Presidency Project (Oct. 9, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038. 14 82 Fed. Reg. 8977 (Jan. 27, 2017). 15 Matt Shuham, Trump Signs Executive Order Laying Out ‘Extreme Vetting,’ Talking Points Memo (Jan. 27, 2017, 4:56 PM), http://talkingpointsmemo.com/livewire/trump-signs-vettingexecutive-order.
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instruction by President Trump to him to find a way to implement a “Muslim ban” “legally.”16
Three days later, on January 30, President Trump referred on his Twitter account to the First Executive Order as “the ban.”17
40. The First Executive Order banned entry of nationals of seven Muslim-majority countries18 for 90 days, suspended the entire U.S. Refugee Admissions Program for 120 days,
established a policy of prioritizing certain religious denominations over others upon resuming the Refugee program, and indefinitely barred entry of all Syrian refugees.19
41. In its “Purpose” section, the First Executive Order explicitly relied on negative
stereotypes about Islam, stating that the United States should not admit individuals who “place
violent ideologies over American law” or engage in acts of violence “including ‘honor killings,’ [or] other forms of violence against women.”20
42. An overt preference for Christian refugees was one of the objectives of the First
Executive Order. Section 5(b) directed the Secretary of State, in consultation with the Secretary
of Homeland Security, to give priority to refugee claims made by persons fleeing “religious-
16 See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ The Hill (Jan. 29, 2017, 8:48 AM), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally. 17 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017 5:31AM), https://twitter.com/realdonaldtrump/status/826060143825666051?lang=en (“If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week. A lot of bad ‘dudes’ out there!”). 18 Some of the targeted countries have far more than simple Muslim majority. In Iran and Yemen for instance, over 99% of the population is Muslim. The World Factbook: Middle East: Iran, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (last visited October 2, 2017); The World Factbook: Middle East: Yemen, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ym.html (last visited October 2, 2017). 19 See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c). 20 Id. § 1.
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based persecution,” but only if the claimant belonged to a “minority religion in the individual’s country of nationality.”21 Although this exception was not expressly limited to religious minorities residing in Muslim-majority countries, President Trump explained in an interview that this exception was intended to give priority to Christian refugees over their Muslim counterparts.22
43. Like the current Proclamation, the First Executive Order attempted to mask its unconstitutional purposes with national security and foreign policy rationales, suggesting that its implementation would protect the country from terrorists.
44. The First Executive Order was immediately met with a series of legal challenges across the country. The day after the First Executive Order was issued, the U.S. District Court for the Eastern District of New York granted an Emergency Motion for Stay of Removal, enjoining the government from removing individuals with approved applications under the Refugee Admissions Program, holders of visas, and other individuals legally authorized to enter the United States from the seven countries designated in the First Executive Order. Darweesh v. Trump, No. 1:17-cv-00480, ECF 8 at 2 (E.D.N.Y. Jan. 28, 2017). It did so on the basis that the petitioners had a strong likelihood of success in establishing that removal would violate their rights to due process and equal protection, and that there was imminent danger of “substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to” the First Executive Order. Id.
21 Id. § 5(e). 22 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
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45. On February 3, 2017, the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order enjoining enforcement of several sections of the First Executive Order on a nationwide basis. Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52 at 5 (W.D. Wash. Feb. 3, 2017). That order was upheld by the U.S. Court of Appeals for the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017).
46. During the pendency of the Washington case, the U.S. District Court for the Eastern District of Virginia preliminarily enjoined Section 3(c) of the First Executive Order, finding that the statements made by President Trump and his Administration demonstrated an intent to ban Muslims from the United States, and that the plaintiffs were therefore likely to succeed on the merits of their Establishment Clause claims. See Aziz v. Trump, No. 1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).
47. One week after the Ninth Circuit’s decision in Washington v. Trump, the Department of Justice informed the Ninth Circuit that the President intended to rescind the First Executive Order and replace it with a “new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” Defendants-Appellants’ Supplemental Brief on En Banc Consideration, Washington v. Trump, No. 17-35105, ECF 154 at 4 (9th Cir. Feb. 16, 2017).
48. On February 21, 2017, a White House Senior Policy Advisor elaborated during an interview that the intended revised executive order would include “mostly minor technical differences” but “[f]undamentally, you’re still going to have the same basic policy outcome for the country.”23
23 Matt Zapotosky, A new travel ban with ‘mostly minor technical differences’? That probably won’t cut it, analysts say, Wash. Post (Feb. 22, 2017), https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-
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49. On February 24, 2017, the Associated Press obtained a DHS report prepared at the request of the Acting Under Secretary for Intelligence and Analysis.24 That report found that citizenship is “likely an unreliable indicator” of terrorist activity,25 despite the First Executive Order’s supposed purpose to protect the nation from foreign terrorists.
C. The Second Executive Order 50. On March 6, 2017, President Trump issued a new executive order with the same name.26 The Second Executive Order removed Iraq from the list of countries from which nationals were categorically banned from entry into the United States, but subjected Iraqis entering the United States to enhanced vetting.27 The Second Executive Order also eliminated the priority for refugees of minority religions but still referenced “acts of gender-based violence against women, including so-called ‘honor killings’ in the United States by foreign nationals.”28 51. The Second Executive Order also directed the Secretary of Homeland Security to “conduct a worldwide review” to determine what information the U.S. government needed from foreign governments to adjudicate visa applications.29 52. On March 15, 2017, the U.S. District Court for the District of Hawaii issued a nationwide temporary restraining order against Sections 2 and 6 of the Second Executive Order.
minortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f91811e6-bf01-d47f8cf9b643_story.html. 24 Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24, 2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravel-bantrump/98374184/. 25 Id. 26 82 Fed. Reg. 13209 (March 6, 2017). 27 Id. § 4. 28 Id. § 11(a)(iii). 29 Id. § 2(a).
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Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).30 It did so on the basis that the plaintiffs “met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim.” Id. at 1123.
53. The next day, this Court issued a preliminary injunction against enforcement of Section 2(c) of the Second Executive Order (the provision restricting entry into the United States by nationals of Iran, Syria, Yemen, Sudan, Libya, and Somalia). Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The Court ruled that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause challenge. Id. at 564.
54. Speaking at a rally in Nashville, Tennessee, on the same day that the Hawaii Court issued its ruling, President Trump stated that the Second Executive Order was a “watereddown version” of the first one and that “we ought to go back to the first one and go all the way.”31
55. On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld in large part the nationwide injunction issued by this Court. IRAP, 857 F.3d at 606. The government filed a petition for writ of certiorari in the U.S. Supreme Court on June 1, 2017. On the same day, the government filed with the Supreme Court an application for a stay of the injunctions in both IRAP v. Trump and Hawaii v. Trump (the latter of which was still pending on appeal in the Ninth Circuit).
30 The Ninth Circuit lifted the injunction with respect to the review and reporting provisions of the Second Executive Order on June 12, 2017. Hawaii, 859 F.3d at 786. 31 Matt Zapotosky, et al., Federal judge in Hawaii freezes President Trump’s new entry ban, Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyers-faceoff-on-trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c-11e793dc-00f9bdd74ed1 story.html?utm term=.bf85c7c44a4c.
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56. On June 12, 2017, the Ninth Circuit ruled on the Hawaii injunction, unanimously ruling in favor of the plaintiffs and upholding the injunction in large part. 859 F.3d at 741. Rather than relying on the constitutional grounds cited by the district court, the Ninth Circuit held that portions of the Second Executive Order likely exceeded the President’s authority under the INA. Id.
57. The provisions of the Second Executive Order were originally scheduled to end on June 14, 2017, raising questions about whether the appeal to the Supreme Court might be moot. That day, however, the White House issued a Presidential Memorandum delaying the start date of each of the provisions that had been enjoined by the courts until 72 hours after the injunctions were lifted or stayed as to those provisions.
58. On June 26, 2017, the Supreme Court granted the petitions for certiorari. It consolidated the cases and set them for argument during the first argument session of the Court’s next Term, in October 2017, and ordered the parties to address in their briefing the additional question whether the challenges became moot on June 14. 137 S. Ct. at 2087. The Court also 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.32 The Ninth Circuit reviewed the District of Hawaii’s modified injunction, and in so doing ruled that the district court did not err in including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States within the definition of bona fide close familial relationships.
32 The Supreme Court’s order outlined the requirements for a bona fide relationship: “For individuals, a close familial relationship is required.” For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” 137 S.Ct. at 2088.
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Hawaii v. Trump, __ F.3d __, 2017 WL 3911055 at *9 (9th Cir. Sept. 7, 2017). On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
59. During the litigation prompted by the Second Executive Order, President Trump continued to make official statements underscoring that the Executive Orders, in each iteration, were intended to restrict Muslims from entering the United States. For example, on August 17, 2017, President Trump tweeted support for a false story about General John Pershing executing Muslim insurgents with bullets dipped in pigs’ blood.33 And in response to a terrorist attack in London on September 15, 2017, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!”34
D. The Proclamation 60. On September 24, 2017, President Trump issued the Proclamation, which now expands the Muslim ban to a ban of indefinite duration against the entry into the United States of nationals of the listed Muslim-majority countries, including individuals with bona fide relationships with American citizens and Lawful Permanent Residents.35 Unlike the two
33 Kate Reilly, President Trump Praises Fake Story About Shooting Muslims With Pig’s BloodSoaked Bullets, TIME (Aug. 17, 2017) http://time.com/4905420/donald-trump-pershing-pigsblood-muslim-tweet/ 34 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM), https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en. 35 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White House: Office of the Press Secretary (Sept. 24, 2017), Attach. A; https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-andprocesses-detecting-attempted-entry.
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Executive Orders, there is no time limit in the Proclamation; affected persons are indefinitely banned from entering the United States.
61. The Proclamation expressly refers to the Second Executive Order, does not rescind or nullify the vast majority of the provisions of the Second Executive Order, and imposes the indefinite ban against entry into the United States as immigrants on nationals of the following six Muslim-majority countries, and broad bans on certain visas, with limited exceptions,36 as follows:
a. Chad: All nationals of Chad are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.37
b. Iran: All nationals of Iran are banned from entry into the United States, except under student and exchange visitor visas (F, M, and J), and such student and exchange visitor visa applicants are subject to unspecified “enhanced screening and vetting requirements.”38
36 The visa bans outlined in Section 2 of the Proclamation do not apply to lawful permanent residents of the United States; foreign nationals admitted to the United States on or after the applicable effective date of the Proclamation; “any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatictype visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been granted asylum; refugees who have already been admitted; or individuals who have been granted relief under the Convention Against Torture. Id. § 3(b). 37 Id. § 2(a)(ii). 38 Id. § 2(b)(ii).
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c. Libya: All nationals of Libya are banned from entry into the United States as immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.39
d. Syria: All nationals of Syria are banned from entry into the United States.40 e. Yemen: All nationals of Yemen are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas.41 f. Somalia: All nationals of Somalia are banned from entry into the United States as immigrants. Somali nationals traveling on non-immigrant visas are subject to unspecified “additional scrutiny.”42 62. The Proclamation’s restrictions that apply to individuals who were subject to the operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia, Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or entity in the United States—went into effect on September 24, 2017. All of the Proclamation’s other restrictions were set to go into effect on October 18, 2017.43 63. The bans on entry into the United States by nationals of these Muslim-majority countries mean that U.S. citizens and Lawful Permanent Residents cannot reunite in the United States with their spouses, children, and parents who are nationals of countries subject to the
39 Id. § 2(c)(ii). 40 Id. § 2(e)(ii). 41 Id. § 2(g)(ii). 42 Id. § 2(h)(ii). 43 Because of this Court’s and the District of Hawaii’s injunctions, the provisions of the Proclamation did not go into effect until Dec. 4, 2017, when the Supreme Court stayed the injunctions pending its resolution of the cases.
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Proclamation. And the Proclamation purports to justify its blanket restrictions on immigrant entry from all of these Muslim-majority countries by observing that Lawful Permanent Residents receive “more enduring rights” and are therefore “more difficult to remove than nonimmigrants.”44
64. In an effort to disguise the underlying intent to ban entry of Muslims into the United States, the Proclamation—unlike its predecessor Executive Orders—also imposes nominal restrictions relating to nationals of two non-Muslim-majority countries: North Korea and Venezuela. The Proclamation bans immigrant and non-immigrant visas for North Korean nationals (except for the limited exceptions in § 3(b)), but the number of visas issued each year to North Korean nationals is extraordinarily low.45 And unlike the restrictions imposed for the Muslim-majority countries, most nationals of Venezuela generally are not subject to a ban; the Proclamation applies solely to a small group of officials of the Venezuelan government and their immediate family traveling under certain classes of non-immigrant visas.46 The additional travel restrictions involving these two non-Muslim-majority countries are thus without practical effect, and in any event cannot transform the unconstitutional Muslim ban into a permissible nationalsecurity measure.
44 Id. § 1(h)(ii). 45 For example, according to the 2015 Yearbook of Immigration Statistics published by DHS, only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table 26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table3 (last published Dec. 15, 2016). 46 Attach. A § 2(f)(ii).
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65. Excluding the makeweight additions of North Korea and Venezuela, which are subject to only negligible impacts, the Proclamation restricts entry of more than 157 million nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Of those nationals, a conservative estimate is that at least 137 million of those people—over 87%—are Muslim.47
66. Also to try to disguise its underlying religious purpose, the Proclamation purports to be based on the worldwide review of information-sharing practices, policies, and capabilities of foreign countries directed by the Second Executive Order. The Proclamation states that the Secretary of Homeland Security, with assistance from the Secretary of State and Director of National Intelligence, “developed a baseline for the kinds of information required from foreign governments” regarding individuals seeking entry into the United States,48 and evaluated each country against this baseline.49 The Proclamation states that the Secretary of Homeland Security submitted a report to the President on July 9, 2017, which developed that baseline.50 The Proclamation further explains that the Department of Homeland Security, in coordination with the State Department, “collected data,” “measured performance,” and “evaluated risks” associated with each country that they assessed and evaluated against the baseline, culminating
47 The World Factbook, Country Comparison: Population, CIA https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries subject to the Proclamation, in the total amount of more than 157 million people, as well as the estimated percentages of Muslims in each country. This calculation excludes the entire Muslim population of Somalia, for which information was not available; this suggests that the true proportion of the nationals subject to the ban who are Muslim is actually considerably higher than 87%. 48 Attach. A § 1(c). 49 Id. §§ 1(d), (e). 50 Id. § 1(c).
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in their identification of 16 countries as being “inadequate” and another 31 as “at risk” of becoming inadequate.51
67. The Proclamation states that the Secretary of Homeland Security “assesse[d]” seven countries to “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors with respect to the baseline . . . such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.”52 The Secretary submitted a report on September 15, 2017, to the President “recommending entry restrictions and limitations” on nationals of the seven countries, but the specifics of those recommendations are not provided in the Proclamation. The Secretary also “assesse[d]” that Iraq “did not meet the baseline” but declared that “additional scrutiny” was recommended nonetheless. Although Somalia was not similarly “assessed” by the Secretary, he determined that “special circumstances” warrant “entry restrictions, limitations, and other measures” for nationals of Somalia.53 The Proclamation states that the President reviewed the report and imposed the “restrictions and limitations” by the proclamation because, in his judgment, they were necessary, among other reasons, “to elicit improved identity-management and informationsharing protocols and practices from foreign governments.”54
68. The contents of the Department of Homeland Security’s review and evaluation have not been made public, despite discussion in the Proclamation indicating that portions have been shared with foreign governments during a “50-day engagement period” with other countries
51 Id. § 1(d), (e). 52 Attach. A § 1(g). 53 Id. § 1(i). 54 Id. § 1(h)(i).
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with respect to the baseline,55 and indicating that the review and evaluation contain information similar to that set forth publicly in the First and Second Executive Orders.
69. Despite purporting to cover every foreign country’s information-sharing practices, the July 9, 2017, the report prepared by DHS was a mere 17-pages long—or less than one-tenth of a page for each of the “nearly 200” countries purportedly evaluated in the worldwide review.56
70. The government of Chad issued a statement on September 25, 2017, expressing “astonishment” and “incomprehension in the face of the official reasons for [the] decision” to extend the ban against entry to the United States to nationals of Chad.57 Chad has since been removed from the travel ban.58
71. The Proclamation’s “baseline” test relies on the same criteria used for the Visa Waiver Program. Compare Proclamation § 1(c), with 8 U.S.C. § 1187(a)(12)(A)(i)(III), (c)(2)(B)-(E). By adopting a test that incorporated the Visa Waiver Program criteria, Defendants ensured that many of the countries subject to the EO-2 travel ban would also fail the baseline test.
72. The Visa Waiver Program criteria include factors that serve no rational purpose (and hence have no rational basis) for the “baseline” test. The Visa Waiver Program applies to a small group of non-immigrant visas—business travelers and tourists visiting the U.S. for less than 90 days—and is limited to nationals of roughly 38 countries that permit U.S. nationals to
55 Id. § 1(f). 56 See Trump v. Hawaii, 138 S. Ct. 2392, 2443 (2018) (Sotomayor, J., dissenting); Brennan Ctr. for Justice v. U.S. Dep’t of State, Dkt. No. 31-1, No. 17-cv-7520 (S.D.N.Y 2018). 57 Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html. 58 U.S. Department of State, Presidential Proclamation Lifts Travel Restrictions for Chad (Apr. 10, 2018), https://www.state.gov/r/pa/prs/ps/2018/04/280364.htm.
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travel to their countries without a visa. Because a noncitizen may enter the U.S. under the Visa Waiver Program without an in-person interview or a detailed written submission, customs officials must quickly assess the individual based on her passport and information in nationalsecurity and law-enforcement databases. See 8 U.S.C. § 1187(a)(9)-(11). That is why the Visa Waiver Program places great emphasis on a foreign country’s passport design and willingness to share information.
73. The concerns underlying the Visa Waiver Program are not rationally related to the purported purposes of the “baseline test.” The “baseline test” is not intended to determine which non-citizens should receive an in-person interview or provide a detailed written submission for entry into the United States; it is intended instead to determine which non-citizens should be barred from entering the U.S. even with an in-person interview and a detailed written submission. For example, both the Visa Waiver Program and “baseline test” consider “whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.” Compare Proclamation § 1(c)(ii), with 8 U.S.C. § 1187(c)(2)(F). That factor may make sense under the Visa Waiver Program, when the United States may, for example, make class-based determinations whether to allow an inbound plane carrying noncitizens to enter the United States without visas. But it is an utterly irrational factor on which to base a permanent and categorical ban on immigrant and certain non-immigrant visas for citizens of certain countries. That is especially true given that the Proclamation applies equally to citizens of the affected countries who reside in a country that is covered under the Visa Waiver Program and would travel to the United States from that country.
74. The Proclamation’s treatment of the baseline-test results further demonstrates that the Proclamation is not a rational national-security measure. Rather than implementing the
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results of the baseline test, the Proclamation makes alterations to ensure closer replication of EO2. For example, although Iraq failed the baseline test, the acting Secretary of Homeland Security recommended that its nationals not be banned from entry by the Proclamation. Proclamation § 1(g). She based her decision on “diplomatic” considerations, not a security determination, id., and did not explain why DHS was making diplomatic judgments, leaving only the obvious explanation that her decision was influenced by Iraq’s exclusion from the earlier EO-2.
75. The President also departed from the baseline-test results to make the Proclamation more consistent with EO-2 when, with the narrow exception of certain government officials, he declined to impose restrictions on Venezuela—a country with few Muslims and that was not included in EO-2—even though it failed the baseline assessment. Id. § 2(f)(i). The President chose not to impose the travel restrictions on Venezuela because he asserted (but did not identify) “alternative sources for obtaining information” about Venezuelans. Id. The President gave no explanation for why Venezuela received such favorable treatment while other countries did not.
76. The President banned entry for all immigrants from Somalia—a predominately Muslim country—even though it passed the baseline test. The Proclamation states that Somalia’s passage of the baseline test would be ignored because of “several other considerations.” Proclamation § 2(h)(i). But the “other considerations” were factors already in the baseline test, which Somalia passed. Id. No rational application of the baseline test would disregard its results based on factors already considered as part of the test and thus were, by definition, insufficient to outweigh the countervailing factors.
77. The “baseline test” also irrationally omits any consideration whether current vetting practices have been sufficient to detect which applicants pose national-security risks.
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Although the President previously ordered DHS to produce a report on these issues, the Proclamation notably omits any such analysis. The statistics on past vetting failures suggest that considering this information would have skewed the results away from the President’s promised Muslim ban. Nationals from the countries targeted in the ban are responsible for virtually no terrorist attacks in the United States.
78. The Proclamation applies to nationals of the listed countries regardless of where they currently reside, including those who reside in other countries that have not been identified as having “‘inadequate’ identity-management protocols, information-sharing practices, and risk factors”—and even if those persons have resided outside their country of origin for their entire lives, and even if those persons reside outside their country of origin because of fear of persecution. This categorical ban on the entry into the United States of more than 157 million nationals of six Muslim-majority nations cannot be justified by a single 17-page report on worldwide practices that was prepared in a matter of months.
79. The Proclamation’s reliance on inadequacy of other governments’ informationsharing practices to qualify for the Visa Waiver Program as justification for a categorical and undifferentiated ban of at least 137 million Muslims lacks any rational basis. The U.S. government already has a mechanism to deal with visa applicants from countries without sufficient information-sharing capabilities. Under the Immigration & Nationality Act, when a foreign government’s identity-verification and information-sharing procedures are deemed inadequate, nationals of that country must individually apply and prove their eligibility for a
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visa.59 The individual bears the burden of providing the requisite information; if he or she is unable to do so to a consular official’s satisfaction, the official may deny the applicant a visa.
80. The Proclamation, however, deprives individuals from the covered Muslimmajority countries of the opportunity to prove their eligibility, simply because of the inadequacy of their government’s ability to share information with the United States to the satisfaction of the technical requirements of the Visa Waiver Program. The Proclamation offers no rational national-security justification for why the current INA procedures are inadequate or why a government’s inability to share information with the United States justifies denying individuals from the covered Muslim-majority nations the opportunity individually to prove their eligibility for visas. Indeed, the Proclamation points to no information at all about fraud, mistaken identity, missing information, or vetting failures of any kind under this current system.
81. The Proclamation further attempts to mask its anti-Muslim purpose by providing for “case-by-case” waivers issued to individuals who are covered by the ban but who can demonstrate that denial of entry “would cause undue hardship” and that permitting their entry “would not pose a threat to national security, . . . and would be in the national interest.”60 The Proclamation contains a non-exhaustive list of circumstances in which a waiver may be appropriate, including when a foreign national “has previously been admitted to the United States for a continuous period” or “has previously established significant contacts,” or when a foreign national seeks to enter “for significant business or professional obligations,” “to visit or
59 See 8 U.S.C. § 1202(a)-(d); cf. id. § 1187 (describing the Visa Waiver program, under which foreign nationals from countries with adequate information-sharing procedures can enter the United States without a visa). 60 Id. § 3(c).
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reside with a close family member” or to obtain “urgent medical care.”61 The Proclamation directs the Secretary of State and the Department of Homeland Security to promulgate guidance addressing the implementation of this waiver provision.
82. Although the Proclamation purports to create a waiver mechanism, in practice there is no procedure to apply for these waivers and scant guidance on when waivers are to be issued. There is currently no application through which visa applicants may apply for or submit documentation demonstrating eligibility for a waiver. Applicants and their attorneys have also been informed that “[t]here is no role or requirement for legal services to facilitate the waiver process”62
83. The Proclamation directed the State Department and DHS to issue guidance on implementing the waiver process, but the agencies have largely failed to do so. The first guidance was published on the State Department’s website following the Supreme Court’s June 26, 2018, decision in Hawaii v. Trump. The “FAQs” on the State Department website do not provide meaningful guidance on how the agencies are implementing the waiver provisions.
84. Waivers are granted in a miniscule percentage of cases. As of April 30, out of 27,129 applicants ostensibly assessed for waivers, only 579 were “cleared” (i.e., determined to be eligible to be considered) for waivers—a rate of approximately two percent.63 The State Department has not reported how many of those “cleared” for waivers have actually received them. Indeed, individuals who clearly meet the Proclamation’s criteria for waivers have
61 Id. § 3(c)(iv). 62 Decl. of Jay Gairson, Emami v. Nielsen, Dkt. No. 34-5, No. 18-cv-1587 (N.D. Cal. filed July 29, 2018). 63 Yeganeh Torbati, U.S. issued waivers to Trump’s travel ban at rate of 2 percent, data shows, Reuters (June 26, 2018), https://www.reuters.com/article/us-usa-immigration-ban/u-s-issuedwaivers-to-trumps-travel-ban-at-rate-of-2-percent-data-shows-idUSKBN1JN07T
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repeatedly been denied a waiver. For example, Doe Plaintiff #4’s mother-in-law was denied a waiver before she even had the opportunity to apply for one.
85. Former consular officials have stated that the waiver process is a “fraud” and has “no rational basis.”64 In a sworn declaration filed in federal district court in the Eastern District of New York, a former consular official describes how officials were given a list and instructed “to determine at all possible cost that the [applicant] was not eligible to even apply for the waiver.”65 Even when an applicant was deemed to be eligible to apply for a waiver, consular officials were “not allowed to exercise [their] discretion” but instead would have to “send notice to Washington, [DC],” where the waiver determination would ultimately be made.66
86. The Proclamation’s purported reliance on (irrational) criteria, imposition of restrictions on North Korean nationals and on a small group of Venezuelan government officials, and (sham) waiver provision cannot paper over the legal and constitutional defects of the predecessor expressions of the Muslim ban with post hoc national-security justifications. The national-security and other purported rationales for the bans imposed by the Proclamation on millions of Muslims from the several Muslim-majority countries, which disproportionately harm their American Muslim relatives, are not bona fide reasons for the Proclamation. Indeed, DHS has already found that citizenship is “likely an unreliable indicator” of terrorist activity, thus calling into serious question the rationality of the alleged national-security concerns underlying a travel ban for whole countries.
64 Jeremy Stahl, “The Waiver Process is Fraud,” Slate (June 15, 2018), https://slate.com/newsand-politics/2018/06/trump-travel-ban-waiver-process-is-a-sham-two-consular-officers-say.html. 65 Decl. of Christopher Richardson, Al Harbi v. Miller, Dkt. No. 24-2, No. 18-cv-02435 (E.D.N.Y. filed July June 1, 2018). 66 Id.
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87. The recently generated national-security rationale cannot wipe away the antiMuslim bias that has animated President Trump’s dogged efforts to fulfill his promise to ban Muslims from entering this country. Indeed, the history of the President’s failed attempts to enact his intended Muslim ban through two Executive Orders supports the inference that the national security report is a pretext. And President Trump’s anti-Muslim statements have continued unabated since the issuance of the Proclamation. For example, on October 20, 2017, he falsely stated that a report demonstrated an increase in crime in the United Kingdom “amid [the] spread of Radical Islamic Terror,” when the report in fact addressed the incidence of all crimes, not just terrorism.67 On November 29, 2017, the President retweeted three specious antiMuslim videos that were initially posted by a British group whose mission is to oppose “all alien and destructive politic[al] or religious doctrines, including . . . Islam.” When asked about these videos, the White House Deputy Press Secretary explicitly linked them to the Proclamation, stating that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.”
88. Moreover, the President has expressly refused to disavow his prior statements, making clear that he sees “no reason to apologize” for his anti-Muslim rhetoric.68
89. The President’s repeated derogatory statements about Muslims and the history of his failed attempts to enact his intended Muslim ban through two Executive Orders further shows that the Proclamation’s asserted national-security justification is mere pretext and does not
67 Anger over Donald Trump’s UK crime tweet, BBC News (Oct. 20, 2017), https://www.bbc.com/news/uk-politics-41695667. 68 Adam Liptak, ‘There’s No Reason to Apologize’ for Muslim Ban Remarks, Trump Says, N.Y. Times (Apr. 30, 2018), https://www.nytimes.com/2018/04/30/us/politics/trump-supreme-courtmuslim-ban.html.
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provide a rational justification for imposing a ban on most travel from Muslim-majority countries. In light of all of this, the basis for the Proclamation cannot be explained by anything other than an anti-Muslim animus.
90. And even if the national security report identifies legitimate vetting and information-sharing issues with respect to the specified countries, the categorical and undifferentiated ban of at least 137 million Muslims is a wildly overbroad response that violates the Constitution.
E. Procedural Posture 91. On October 17, 2017, this Court issued a preliminary injunction prohibiting enforcement of the Proclamation. ECF No. 46. The Fourth Circuit, sitting en banc, affirmed this Court’s decision. IRAP v. Trump, 883 F.3d 233 (4th Cir. 2018). The Supreme Court subsequently granted certiorari and vacated the Fourth Circuit’s decision in light of its ruling in Trump v. Hawaii, 138 S. Ct. 2392 (2018).
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF (Violation of the Establishment Clause of the First Amendment)
(All Plaintiffs Against All Defendants) 92. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 93. The Establishment Clause of the First Amendment to the U.S. Constitution prohibits the government from “differentiat[ing] among religions.” Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson v. Valente, 456 U.S. 228 (1982)).
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94. The Establishment Clause further prohibits the government from taking actions that lack a secular purpose or have the principal or primary effect of advancing or inhibiting religion.
95. The Establishment Clause prohibits the government from endorsing or disapproving of a religion or particular religious beliefs.
96. The Proclamation impermissibly discriminates on the basis of religion and constitutes an unconstitutional denominational preference against Muslims. Despite being cloaked in the rhetoric of national security, the Proclamation—like the Executive Orders that preceded it—is intended to and does disproportionately harm Muslims because of their faith. The six countries whose nationals the Proclamation meaningfully restricts—Chad, Iran, Libya, Syria, Yemen, and Somalia—are all Muslim-majority countries. The other two countries nominally covered by the ban are North Korea, whose nationals currently receive a vanishingly small number of visas, and Venezuela, whose nationals are affected only if they are family members of government officials “involved in screening and vetting procedures” who are not seeking to immigrate to the United States. Thus the Proclamation’s effects on non-Muslim countries’ nationals are de minimis. The continued outsized effect on Muslim entrants demonstrates that the Proclamation discriminates on the basis of religion.
97. In addition, the Proclamation violates the Establishment Clause because the President’s repeatedly stated intent to ban Muslims from immigrating to or entering the United States and the Proclamation’s direct lineage from and effectuation of those policy statements, demonstrate that the Proclamation lacks a predominantly secular purpose and that it has a principal effect of discriminating against, denigrating, and disfavoring Muslims.
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98. Finally, the Proclamation communicates official disapproval of Islam, stigmatizing Plaintiffs and their religion.
99. Defendants’ violation causes ongoing harm to Plaintiffs. SECOND CLAIM FOR RELIEF
(Violation of the Free Speech Clause of the First Amendment) (Iranian Alliances Across Borders Against All Defendants)
100. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
101. The Free Speech Clause of the First Amendment protects the “right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
102. The Proclamation violates the right of IAAB to receive information and ideas from the Persian scholars (many of whom are nationals of Iran) whom IAAB routinely invites to speaking engagements and other cultural community-building events.
103. Defendants’ violation causes ongoing harm to IAAB. THIRD CLAIM FOR RELIEF
(Violation of Equal Protection Under the Fifth Amendment) (All Plaintiffs Against All Defendants)
104. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
105. Plaintiffs are entitled to the protections of the Fifth Amendment. 106. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the law. 107. The Proclamation was motivated by animus and a desire to harm a particular group. 108. The Proclamation has a disparate impact, targeting individuals for discriminatory treatment on the basis of religion and national origin. The discriminatory terms and application
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of the Proclamation are not justified by legitimate governmental interests, much less by compelling ones.
109. Defendants have violated the equal protection guarantee of the Fifth Amendment. 110. Defendants’ violation causes ongoing harm to Plaintiffs.
FOURTH CLAIM FOR RELIEF (Violation of Procedural Due Process under the Fifth Amendment)
(All Plaintiffs Against All Defendants) 111. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 112. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 113. Congress has granted statutory rights and prescribed procedures applicable to prospective immigrants and refugees. Due process rights attach to those statutory rights. 114. In addition, United States citizens have a cognizable liberty interest with respect to the ability of specific noncitizen family members to travel to the United States. 115. The Proclamation, in depriving immigrants and refugees of the rights afforded to them by statute, and in depriving United States citizens of travel by specific noncitizen family members to the United States, violates the procedural due process guarantees of the Fifth Amendment. 116. Defendants’ violation causes ongoing harm to Plaintiffs.
FIFTH CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (All Plaintiffs Against Defendants Duke, McAleenan, McCamment, Tillerson, and Sessions) 117. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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118. The Administrative Procedure Act (“APA”) requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to a constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A)–(C).
119. The APA requires courts to set aside agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Specifically, the APA requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 5 U.S.C. § 553, 706(2)(D).
120. In instituting the Proclamation, including the requirement that subjects Iranian student and exchange visitor visa applicants to unspecified “enhanced screening and vetting requirements,” Defendants have acted contrary to the constitutional rights of Plaintiffs, and in particular Plaintiff ISF and its members, and in excess of statutory jurisdiction, authority, or limitations, or short of a statutory right. Defendants’ actions were taken without observance of procedure required by law. The Proclamation identifies final agency action by the Department of Homeland Security and the Department of State, including the creation of a baseline criteria, collection of data, evaluation and assessment of various practices, procedures, and performance against that baseline, and identification of various countries as inadequate or at risk of being inadequate under that baseline, followed by further information collection, assessment, and identification of countries that continued to be inadequate under that baseline. The agencies took these final actions without complying with the requirements of the Administrative Procedure Act.
121. Defendants’ violation causes ongoing harm to Plaintiffs.
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SIXTH CLAIM FOR RELIEF (Violation of Right to Free Association under the First Amendment)
(ISFs Against All Defendants) 122. Plaintiffs repeat and incorporate by reference each and every allegation in the preceding paragraphs as if fully set forth herein. 123. The First Amendment protects the right to associate, as there is a close nexus between the freedoms of speech and association. 124. In instituting the Proclamation, the Defendants prevent Plaintiff ISF from its right to associate. It will be threatened with a reduction in its membership because it will be difficult for students who are Iranian nationals to come to the University of Maryland, and associate with ISF and its membership, hindering its mission of raising awareness about Persian culture, history, and tradition. In so doing, Defendants violate the First Amendment. 125. Defendants’ violation causes ongoing harm to Plaintiff ISF.
PRAYER FOR RELIEF WHEREFORE, all Plaintiffs seek an order and judgment to: 126. Declare that the Proclamation, on its face or as applied, violates the Constitution and laws of the United States; 127. Enter a nationwide injunction enjoining Defendants from:
a. Enforcing the Proclamation; b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of
any immigrant or nonimmigrant visa; c. Applying the Proclamation to deny or suspend entry or admission of any person; d. Applying the Proclamation to prohibit any person from applying for or receiving
any benefit under the Immigration and Nationality Act;
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e. Denying any person subject to the Proclamation access to legal counsel of his or her choice;
f. Applying the Proclamation to instruct any airline or other common carrier to deny passage to any person;
g. Applying the Proclamation to impose any penalty on any airline or other common carrier for allowing passage to any person covered by the Proclamation;
128. Order Defendants promptly to provide written guidance to employees, contractors, and agents of DHS, the State Department, U.S. Customs and Border Protection, and all other United States government officials and entities necessary to ensure full and timely compliance with all terms of the order to be entered by the Court;
129. Require Defendants promptly to rescind any guidance, directive, memorandum, or statement interpreting or applying the Proclamation that conflicts with any term of the order to be entered by the Court;
130. Require Defendants promptly to post a copy of the written guidance required under paragraph 114 on government websites, including state.gov;
131. Require Defendants promptly to update all relevant public guidance, documentation, and FAQs to reflect the terms of the order to be entered by the Court;
132. Require Defendants to instruct the consular officials handling the visa applications of Plaintiffs, their families, and IAAB’s invitees and others attending IAAB programs to print and issue the visas and travel documents within 10 days of the Court’s order;
133. Require Defendants to instruct the relevant officials from the State Department and Department of Homeland Security not to deny visas or entry into the United States to
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Plaintiffs, their families, or IAAB’s invitees and others attending IAAB programs for any reason

directed by or arising from the Proclamation or guidance implementing it;

134. Require Defendants to process without undue delay visa applications submitted

by nationals of Iran, Libya, Syria, Yemen, and Somalia;

135. Require Defendants to file with the Court, on the tenth day of each month

following the entry of the Court’s order, a signed and verified declaration stating:

a. The number of United States visas granted during the previous month to nationals

of Iran, Libya, Syria, Yemen, and Somalia;

b. The number of United States visa applications denied during the previous month

to nationals of Iran, Libya, Syria, Yemen, and Somalia;

c. For each denied visa application under the above subparagraph (b), the identifying

information or numbers for the application for the Court’s reference;

d. For each denied visa application under the above subparagraph (b), a detailed

explanation of the reason or reasons why the application was denied. The

explanation under this subsection must state the facts, authorities, and reasoning

relevant to the Defendants’ decision on the application;

136. Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42

U.S.C. § 1988;

137. Any other relief that the Court deems necessary or just to cure the violations

specified in this Complaint or that justice may require.

Dated: October __, 2018

Respectfully submitted,

/s/ Mark H. Lynch

Johnathan Smith* Sirine Shebaya (Bar # 07191)

Mark H. Lynch (Bar # 12560) Mark W. Mosier*

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Case 8:17-cv-02921-TDC Document 78 Filed 11/02/18 Page 42 of 42

MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (Bar # 27636) AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 katskee@au.org

Karun Tilak* Marianne F. Kies (Bar # 18606) COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 mlynch@cov.com mmosier@cov.com mkies@cov.com ktilak@cov.com
Kathryn E. Cahoy* COVINGTON & BURLING LLP 333 Twin Dolphin Dr., Suite 700 Redwood Shores, CA 94065 Tel: (650) 632-4735 Fax: (650) 632-4800 kcahoy@cov.com

* Admitted pro hac vice.

Attorneys for Plaintiffs

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 Case 8:17-cv-02921-TDC Document 91 Filed 05/02/19 Page 1 of 46

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.

Civil Action No. TDC-17-0361

IRANIAN ALLIANCES ACROSS BORDERS, UNIVERSITY OF MARYLAND COLLEGE PARK CHAPTER, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. TDC-17-2921

EBLAL ZAKZOK, et a!., Plaintiffs, v.
DONALD J. TRUMP, eta!., Defendants.

Civil Action No. TDC-17-2969

MEMORANDUM OPINION

Case 8:17-cv-02921-TDC Document 91 Filed 05/02/19 Page 2 of 46
In 2017, President Donald J. Trump issued two Executive Orders temporarily banning the entry into the United States, with some exceptions, of nationals of multiple predominantly Muslim nations. These orders were followed by a Presidential Proclamation which extended the ban indefinitely as to immigrants and certain categories of nonimmigrants from a substantially similar set of Muslim-majority countries. Plaintiffs in these three consolidated cases, International Refugee Assistance Project ("IRAP"), HIAS, Inc., Middle East Studies Association ("MESA"), Arab-American Association of New York, Yemeni-American Merchants Association ("Y AMA"), Doe Plaintiffs 1-5, Muhammed Meteab, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour Shirani, and Afsaneh Khazaeli (collectively, "the IRAP Plaintiffs"); Iranian Alliances Across Borders ("IAAB"), Doe Plaintiffs 1, 3, 5 and 6, and Iranian Students' Foundation (collectively, "the IAAB Plaintiffs"); and Eblal Zakzok, Fahed Muqbil, and Doe Plaintiffs 1 and 2 (collectively, "the Zakzok Plaintiffs"), challenge the Proclamation on the grounds that it violates several provisions of the United States Constitution and that the agencies implementing it have not complied with the Administrative Procedure Act ("APA"), 5 U.S.C.
SS 551-559, 701-706 (2012). After the United States Court of Appeals for the Fourth Circuit
affirmed a preliminary injunction entered by this Court to prevent the implementation of the Proclamation on the grounds that it violated the Establishment Clause of the First Amendment, the United States Supreme Court reversed a similar preliminary injunction that had been entered in a parallel case, held that the plaintiffs in that case were unlikely to succeed on the merits of their claims, including under the Establishment Clause, and remanded.
The consolidated cases have now been remanded to this Court following the Supreme Court's decision. Presently before the Court is the Motion to Dismiss all three pending amended complaints ("the Complaints") filed by Defendants (the "Government"). On February 12,2019,
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the Court heard oral argument on the Motion. For the reasons set forth below, the Motion will be

granted in part and denied in part.

BACKGROUND

Relevant factual and procedural background is set forth in the Court's March 15, 2017

and October 17, 2017 Memorandum Opinions. Int'l Refugee Assistance Project v. Trump, 241

F. Supp. 3d. 539, 543-48 (D. Md.), aff'd in part and vacated in part, 857 F.3d 554 (4th Cir.),

judgment vacated, 138 S. Ct. 353 (2017); Int'l Refugee Assistance Project v. Trump ("IRAP 1'),

265 F. Supp. 3d 570, 583-93 (D. Md. 2017), aff'd, 883 F.3d 233 (4th Cir. 2018), judgment

vacated, 138 S. Ct. 2710 (2018). Limited additional facts and procedural history specific to the

Motion are provided below.

I.

The Proclamation

On September 24, 2017, President Donald J. Trump issued Proclamation No. 9645,

"Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United

States by Terrorists or Other Public-Safety Threats" (the "Proclamation"), 82 Fed. Reg. 45161

(Sept. 27, 2017). The Proclamation was the third iteration of the President's efforts to ban the

entry of nationals from certain predominantly Muslim countries into the United States. See Exec.

Order 13,769, "Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO-

1"),82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order 13,780, "Protecting the Nation from Foreign

Terrorist Entry into the United States" ("EO-2"), 82 Fed. Reg. 13209 (Mar. 9,2017).

Preceding EO-I, EO-2, and the Proclamation, President Trump, as a presidential

candidate, president-elect, and President, repeatedly made public statements describing his

intention to ban entry of Muslims to the United States and otherwise evincing fear of and prejudice

against Muslims. See lRAP 1,265 F. Supp. 3d at 585-86, 589-90. For example, on December 7,

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2015, then-presidential candidate Trump posted a statement on his campaign website in which he "call[edJ for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on." IRAP 2d Am. Compi. ,-r55, ECF No. 203, No. TDC-17-0361; IAAB 2d Am. CompI.,-r 28, ECF No. 78, No. TDC-17-2921; ZakzokAm. Compi. ,-r20, ECF No. 62, No. TDC-17-2969. On March 9, 2016 during a televised interview, he stated: "I think Islam hates us" and "We can't allow people coming into this country who have this hatred of the United States ... and [of] people that are not Muslim." IRAP 2d Am. Compi. ,-r60; IAAB 2d Am. Compi. ,-r32; Zakzok Am. Compi. ,-r20. On July 25, 2016, President Trump clarified that he would accomplish his Muslim ban by barring entry from certain "territories" because "people don't want me to say Muslim." IRAP 2d Am. Compi. ,-r76; IAAB 2d Am. Compi. ,-r34-35; Zakzok Am. Compi. ,-r27. Shortly after President Trump signed EO-Ion January 27, 2017, Rudolph Giuliani, an advisor to President Trump, stated that it was the product of an effort directed by President Trump to put the "Muslim ban" into effect "legally" by using territory as a proxy for religion. IRAP 2d Am. CompI.,-r 65; IAAB 2d Am. CompI.,-r 39; Zakzok Am. Compi. ,-r27.
After EO-l was rescinded and EO-2 went into effect, President Trump called EO-2 a "watered down" version of EO-I. IRAP 2d Am. Compi. ,-r,-1r86, 190; IAAB 2d Am. Compi. ,-r54; Zakzok Am. Compi. ,-r33. Even after EO-2 was enjoined by courts, President Trump expressed his intent to issue a third travel ban for the same purpose by stating on June 5, 2017 that the Justice Department "should have stayed with the original Travel Ban, not the watered down, politically correct version" and that there should be a "much tougher version." IRAP 2d Am. Compi. ,-r190. On September 24,2017, President Trump issued the Proclamation.
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The Proclamation states that "absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States" of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the "Designated Countries") "would be detrimental to the interests of the United States." Procl. pmbl. Specifically, the Proclamation suspends the entry of all immigrants from seven of the eight Designated Countries, excepting only Venezuela. The ban on entry by nonimmigrants is "more tailored," with a narrower ban imposed on countries with mitigating circumstances such as a willingness to playa substantial
role in combating terrorism. Id. S 1(h)(iii).
As justification for the ban, the Proclamation references a July 9, 2017 report by the Acting Secretary of Homeland Security, issued pursuant to the requirements ofEO-2, describing a "worldwide review" conducted in consultation with the Secretary of State and the Director of National Intelligence. In that review, these officials selected baseline criteria for assessing the sufficiency of the information provided by foreign governments to permit the United States to confirm the identities of individuals seeking to enter the country and make a security assessment
about them. Id. S l(c); see lRAP 1,265 F. Supp. 3d at 590-91.
According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on the criteria. Of those, 16 nations were found to be "inadequate" and 31 were found to be at risk of becoming so. In accordance with Section 2(d) of EO-2, those nations were given 50 days to bring their information-sharing practices into compliance with the United States's expectations. At the end of that 50-day period, eight countries were determined to have continued inadequate information-sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. In a September 15, 2017 report to the President ("the DHS Report"), the Acting Secretary of Homeland Security recommended that entry restrictions be
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imposed on all of those countries with the exception ofIraq. Although Somalia's informationsharing practices were found to be adequate, the Acting Secretary of Homeland Security recommended that Somalia also be subjected to entry restrictions. Venezuela is the only designated country for which entry of immigrants is not suspended. Limitations on the entry of Venezuelan nationals are confined to barring entry of specific government officials and their immediate family members, who are suspended from traveling to the United States on B-1, B-2, and B-l/B-2 visas.
In addition to providing exceptions for lawful permanent residents, dual nationals if traveling on a passport issued by a non-designated country, and foreign nationals who have been granted asylum status or who have been already admitted to the United States as refugees, the Proclamation provides for waivers, to be granted on a case-by-case basis by either a State Department consular officer or an official of United States Customs and Border Protection ("CBP"), based on criteria to be developed by the Secretary of State and the Secretary of Homeland Security. The Proclamation expressly provides that waivers may be granted only upon a showing that (1) denying entry would cause the foreign national undue hardship; (2) allowing entry would not pose a national security or public safety threat; and (3) entry would be in the national interest.
The Proclamation went into effect when it was published as to foreign nationals then barred by EO-2. For all other covered foreign nationals, it became effective on October 18,2017. On April 10, 2018, Chad was removed from the list of Designated Countries. II. Procedural History
In October 2017, the IRAP Plaintiffs, later joined by the IAAB and Zakzok Plaintiffs, moved for preliminary injunctive relief from the Proclamation. On October 17, 2017, the Court
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granted a preliminary injunction primarily on the grounds that Plaintiffs were likely to succeed on their claim that the Proclamation violates the Establishment Clause. IRAP I, 265 F. Supp. at 629. The preliminary injunction barred the enforcement of most provisions in Section 2 of the Proclamation, which directed the suspension of entry of nationals of the Designated Countries, except with respect to those individuals who lack a bona fide relationship with a person or entity in the United States. !d. at 633.
On the same day, the United States District Court for the District of Hawaii also enjoined enforcement of the Proclamation in a separate case, on the grounds that Plaintiffs were likely to succeed on their claim that the Proclamation exceeded the scope of the President's statutory authority under the Immigration and Nationality Act ("INA"), specifically the authority contained
in 8 U.S.C. SS 1182(f) and 1185, and violated a separate provision of the INA, 8 U.S.C. S 1152(a)(l)(A), which bars discrimination on the basis of nationality in the issuance of
immigrant visas. Hawaii v. Trump, 265 F. Supp. 3d 1140, 1158-59, 1161 (D. Haw.), aff'd in part and vacated in part, 878 F.3d 662 (9th Cir. 2017), rev'd, 138 S. Ct. 2392 (2018). On December 4,2017, the Supreme Court stayed the injunctions pending disposition of the cases by the United States Courts of Appeals for the Fourth and Ninth Circuits, as well as pending any review of the circuit court rulings by the Supreme Court. Trump v. Int'[ Refugee Assistance Project, 138 S. Ct. 542 (2017); Trump v. Hawaii, 138 S. Ct. 542 (2017). On December 22,2017, the Ninth Circuit affirmed the preliminary injunction entered by the District of Hawaii but stayed its ruling in light ofthe Supreme Court's December 4,2017 stay order. Hawaii v. Trump ("Hawaii 1'), 878 F.3d 662,702 (9th Cir. 2017), rev'd, 138 S. Ct. 2392 (2018). The Supreme Court granted the Government's petition for a writ of certiorari in that case on January 19,2018. Trump v. Hawaii, 138 S. Ct. 923 (2018). On February 15,2018, the Fourth Circuit affirmed this Court's grant ofa
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preliminary injunction in IRAP I but also stayed its decision in light ofthe Supreme Court's stay. Int'l Refugee Assistance Project v. Trump ("IRAP If'), 883 F.3d 233, 274 (4th Cir. 2018), judgment vacated, 138 S. Ct. 2710 (2018). On March 9,2018, the Government filed a petition for a writ of certiorari in IRAP II. Pet. Writ Cert., Trump v. Int'l Refugee Assistance Project, No. 17-1270,2018 WL 1419884 (U.S. Mar. 9,2018).
While the petition was pending, on June 26, 2018, the Supreme Court reversed the Ninth Circuit in Trump v. Hawaii ("Hawaii If'), 138 S. Ct. 2392, 2423 (2018). In Hawaii II, the Supreme Court held that the Proclamation did not exceed the President's statutory authority in 8
U.S.C. S 1182(f) and did not violate 8 U.S.C. S 1152(a)(l)(A). Id. at 2412,2415. The Court also
concluded that the plaintiffs had not demonstrated a likelihood of success on their claim that the Proclamation violated the Establishment Clause. Id. at 2415., 2423. On June 28, 2018, the Supreme Court granted the Government's petition for a writ of certiorari in IRAP II, vacated the judgment of the Fourth Circuit, and remanded these cases to the Fourth Circuit for further proceedings in light of Hawaii II. Int'l Refugee Assistance Project v. Trump, 138 S. Ct. 2710 (2018). On October 2, 2018, the Fourth Circuit, in tum, remanded the case to this Court for proceedings consistent with the Supreme Court's decision. Int'l Refugee Assistance Project v. Trump, 905 F.3d 287 (4th Cir. 2018). III. The Amended Complaints
On remand, Plaintiffs continue to challenge the Proclamation, but have modified their claims. Following the Supreme Court's decision in Hawaii II, the lRAP Plaintiffs voluntarily dismissed their claims, brought under the INA and the AP A, that the Proclamation violated 8
U.S.C. S 1182(f) and S 1152(a)(I)(A), as well as their claims that the Proclamation violated the Religious Freedom Restoration Act, 42 U.S.C. S 2000bb (2012), and the Refugee Act, 8 U.S.C.
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S 1157 (2012). On November 2, 2018, this Court granted the IAAB Plaintiffs and the Zakzok
Plaintiffs leave to amend their complaints. Across the three Complaints, Plaintiffs collectively have named the following Defendants: President Trump, the U.S. Department of State ("State Department"), the U.S. Department of Homeland Security ("DHS"), the Office of the Director of National Intelligence, the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, the Commissioner of CBP, and the Director of U.S. Citizenship and Immigration Services.
All Plaintiffs bring claims under the APA alleging that the Proclamation and the actions taken by the implementing agencies do not comply with the substantive and procedural requirements of the APA (the "APA Claims"). Specifically, Plaintiffs assert that the issuance and implementation of the Proclamation was arbitrary and capricious, or an abuse of discretion, in
violation of 5 U.S.C. S 706(2)(A), and that it was issued "without observance of procedure
required by law," including the following of rulemaking procedures, in violation of 5 U.S.C.
SS 706(2)(D) and 553.
All Plaintiffs also continue to assert that the Proclamation violates the Establishment Clause. The IRAP and IAAB Plaintiffs further assert claims that the Proclamation violates the equal protection and procedural due process components of the Due Process Clause of the Fifth Amendment. Finally, the IAAB Plaintiffs assert that the Proclamation also violates the First Amendment rights to freedom of speech and freedom of association. Together, these claims will be referred to as the "Constitutional Claims." All Plaintiffs seek declaratory and injunctive relief.
In support of their claims, Plaintiffs describe in great detail President Trump's statements expressing his intent to institute a Muslim ban by barring entry of individuals from predominantly Muslim territories and his "explicitly bigoted statements about Muslims and Islam," including
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statements surrounding the implementation of EO-I, EO-2, and the Proclamation. Zakzok Am. CompI. ~ 18; see lRAP I, 265 F. Supp. 3d at 585-86, 589-90. Plaintiffs allege that the Proclamation bears no rational relationship to the national security interests it purports to further and identify features of the Proclamation's design, its exceptions, its failure to justify itself, and the waiver process in support of their theory.
First, Plaintiffs argue that the design of the Proclamation provides proof that it does not further its supposed national security purposes. The Zakzok Plaintiffs allege that a nationalitybased ban will not reduce terrorism risks, because DHS has concluded that country of citizenship is not a reliable predictor of the risk of terrorist activity and no Americans have died from a terrorist attack in the last 40 years based on the actions of citizens of five of the eight Designated Countries. The lAAB Plaintiffs allege that the use of the INA's Visa Waiver Program, 8 U.S.C.
S 1187, to evaluate which countries to include in the ban is an irrational baseline because the
purposes of and concerns underlying the Visa Waiver Program and the Proclamation are divergent.
.According to the IAAB and Zakzok Plaintiffs, the Proclamation's departures from the purported results of the baseline test, by including or exempting certain countries from the list of Designated Countries even if they failed or passed the baseline test, evidence that the Proclamation furthers not national security interests, but other unidentified concerns. Similarly, Plaintiffs assert that the exceptions to the visa suspensions are not rationally related to any national security measure. The Zakzok Plaintiffs contend that because the Proclamation allows foreign nationals from the Designated Countries to enter the United States on some nonimmigrant visas, for which they receive less vetting, it does not actually accomplish increased information sharing between the Designated Countries and the United States. The lRAP and IAAB Plaintiffs
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allege that the Proclamation's exceptions for certain foreign nationals and certain countries react to "legal challenges and public condemnation" originating with EO-1 and EO-2 and thus are not founded in any national security policy. IRAP 2d Am. Compi. ~ 210.
Next, Plaintiffs assert that the Proclamation's duplication of other programs under the INA and its failure to explain why its measures are necessary demonstrate that it is not related to national security concerns. Plaintiffs emphasize that the Proclamation does not explain what specific "visa vetting failures" or other factors led DHS to recommend suspending immigration from the Designated Countries or suspending only certain types of visas from certain countries, when it admits that other, unidentified countries could have been included under the terms of DHS's review. Id. ~ 213. The IAAB and Zakzok Plaintiffs add to this allegation that the Proclamation does not explain why the suspension of immigrants is required to supplement or supersede the INA's current method for processing visa applicants from countries with deficient information sharing.
Finally, Plaintiffs assert that other features of the Proclamation demonstrate its discriminatory purpose. Plaintiffs claim that North Korea and Venezuela, two non-Muslimmajority countries, were included among the list of affected countries for the first time to cover up the discrimination against Muslims, because the Proclamation has a negligible practical effect on foreign nationals from those countries. The IAAB and Zakzok Plaintiffs allege in detail that the waiver process, which would exempt individuals from the terms of the Proclamation on a case-by-case basis, masks the Proclamation's discrimination against Muslims. They note that the waiver criteria, "if applied in good faith," would allow the entry of those foreign nationals who do not trigger the national security concerns referenced in the Proclamation. Zakzok Am. Compi. ~ 38. However, the waiver criteria are either "wholly unrelated to national security" or were
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considered in the visa vetting process that was in place before the Proclamation was issued. Id ~ 45. They assert that the State Department and DHS have established no process to apply for waivers, informed applicants that legal services can play no role in facilitating the waiver process, and published no guidance implementing the waiver proceedings, as required by the Proclamation. They further state that as of April 30, 2018, only two percent of applicants had been cleared for waivers, many applicants who met the requirements set out in the Proclamation have been denied waivers, and the State Department has not made information available showing how many waivers have actually been granted. They allege that consular officials have been instructed to find applicants ineligible for waivers, and ifthey are considering a waiver, that they must refer the application to other officials in Washington, D.C. who will decide if a waiver should issue. These allegations, they argue, establish that the waiver process is a "sham" and simply acts to "paper over" the discriminatory animus against Muslims in, and the lack of national security justification for, the Proclamation. IAAB 2d Am. CompI. ~ 86; see Zakzok Am. CompI. ~ 52.
DISCUSSION In its Motion, the Government asserts multiple arguments for dismissal of Plaintiffs' claims. As threshold matters, the Government, while conceding that at least one of the IAAB Plaintiffs has constitutional standing to pursue the asserted claims, takes the position that the IRAP and Zakzok Plaintiffs lack standing. The Government also broadly argues that any statutory claims are not subject to judicial review under the doctrine of consular nonreviewability and related principles. As to the APA Claims, the Government argues that the Proclamation is not subject to AP A review because (l) presidential action is not reviewable under the AP A; (2) Plaintiffs have not
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identified a "final" agency action to be reviewed, 5 U.S.c. S 704; (3) the action here was "committed to agency discretion by law," id. S 701(a)(2); and (4) Plaintiffs do not meet statutory standing requirements, see id. S 702. The Government further argues that the AP A claim that the
Proclamation was "arbitrary and capricious" is foreclosed by the Supreme Court's finding in Hawaii II that the Proclamation satisfies constitutional rational basis review, and that the separate AP A claim that the Proclamation and its implementation violated the procedural requirements of the APA fails because the foreign affairs exception to notice-and-comment rulemaking applies,
see id. S 553(a)(l). As to the Constitutional Claims, the Government argues that all claims must
be dismissed in light of Hawaii II, which held that the Proclamation satisfies rational basis review, that Plaintiffs do not have a cognizable liberty or property interest upon which to base their due process claim, and that Plaintiffs have not alleged a violation of their own rights for the purposes of their Establishment Clause and equal protection claims. I. Legal Standard
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." !d. Legal conclusions or conclusory statements do not suffice. !d. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. ofComm'rs of Davidson CIy., 407 F.3d 266,268 (4th Cir. 2005).
Courts are permitted, however, to consider documents attached to a motion to dismiss "when the document is integral to and explicitly relied on in the complaint, and when the plaintiffs
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do not challenge the document's authenticity." Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 20 15) (quoting Am. Chiropractic Ass 'n v. Trigon Healthcare, Inc., 367 F.3d 212,234 (4th Cir. 2004)). Although the Proclamation itself is not attached to the Complaints, all Plaintiffs refer to and explicitly rely on the Proclamation throughout their Complaints. The Court will therefore consider the Proclamation in ruling on the Motion to Dismiss. II. Justiciability
In broadly asserting that Plaintiffs' claims are not justiciable, the Government largely recycles arguments it made in opposing the Motion for a Preliminary Injunction that were rejected by this Court. Although the Government allows that at least one IAAB Plaintiff has standing, it states in a footnote that it does not agree that the IRAP and Zakzok Plaintiffs have standing. To the extent that these cases remain distinct, this Court has previously held, in ruling on the Motion for a Preliminary Injunction, that several IRAP Plaintiffs, including several individuals and the organizations IRAP, MESA, and YAMA, had standing to assert statutory claims and that likewise certain individual IRAP Plaintiffs had standing to assert an Establishment Clause claim. lRAP I, 265 F. Supp. 3d at 595-600. The Court also found that several Zakzok Plaintiffs had standing, including Zakzok and Jane Doe No.2, both of whom had standing to assert constitutional and statutory claims. Id. at 596, 601. Zakzok and Jane Doe NO.2 remain as Defendants in the Zakzok Amended Complaint with substantially similar allegations relating to their basis for standing.
While the Supreme Court vacated the parallel injunction issued in Hawaii lIon the merits, its opinion does not provide a basis to revisit or alter this Court's prior standing analysis. Rather, the Supreme Court explicitly found standing to assert an Establishment Clause claim, holding that "a person's interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact" and stating that "an American individual who has a
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bona fide relationship with a particular person seeking to enter the country ... can legitimately
claim concrete hardship if that person is excluded." Hawaii IL 138 S. Ct. at 2416. Where the
Supreme Court's only discussion of standing in Hawaii II is consistent with this Court's analysis in lRAP I, and the Government has offered no basis to question the applicability and validity of that analysis, the Court reaffirms its prior conClusion that there is standing in all three cases. lRAP 1,265 F. Supp. 3d at 595-602.
Relatedly, the Court has already considered and rejected the Government's argument that Plaintiffs may not assert an AP A claim because they were not "adversely affected or aggrieved
by agency action within the meaning of the relevant statute." 5 U.S.C. S 702; see Legal Assistance
for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs ("LAVAS"), 45 F.3d 469,471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In lRAP I, the Court addressed this issue and concluded that Plaintiffs were within the "zone of interests of the INA" and were adversely affected by the denial of visas to family members of individual plaintiffs and to individuals expected to attend conferences hosted by organizational plaintiffs. lRAP I, 265 F. Supp. 3d at 603; see also Hawaii 1,878 F.3d at 681-82 (concluding that the plaintiffs fell within the zone of interests protected by the INA); lRAP 11,883 F.3d at 286 (Gregory, C.l., concurring); id. at 310 (Keenan, J., concurring). The Supreme Court did not address this issue in Hawaii II and thus has provided no basis to revisit this Court's prior determination on this point.
The Government also reasserts its claim that the Court may not review Plaintiffs' statutory claims because of the doctrine of consular nonreviewability. The Court, however, held during the preliminary injunction proceedings that consular nonreviewability does not bar Plaintiffs' claims, because the doctrine precludes review of individual visa determinations, while Plaintiffs challenge "the overarching travel ban policy imposed by the Proclamation." lRAP I, 265 F. Supp.
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3d at 602-03. Although the Fourth Circuit, on appeal, did not address this particular issue, two judges, in concurring opinions, reached the same conclusion. See IRAP II, 884 F.3d at 279 (Gregory, C.l., concurring); id. at 309 (Keenan, l., concurring). Notably, this Court's conclusion was consistent with the Ninth Circuit's holding in Hawaii that consular nonreviewability did not bar statutory challenges to the Proclamation. Hawaii I, 878 F.3d at 679-80. In Hawaii II, the Supreme Court provided no basis to alter either the Ninth Circuit's or this Court's conclusion. While acknowledging that the Government's argument "presents a difficult question," the Court assumed "without deciding" that neither consular nonreviewability nor "any other statutory nonreviewability issue" precluded judicial review. Hawaii II, 138 S. Ct. at 2407. This Court therefore finds no reason to revisit its determination that doctrines such as consular nonreviewability do not bar consideration of Plaintiffs' claims. III. APA
Plaintiffs challenge the implementation of the Proclamation pursuant to the AP A, which provides that:
The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law .... 5 U.S.C. ~ 706(2). In addition to the threshold issues discussed above, the Government asserts that the AP A Claims must be dismissed on multiple grounds, including that (1) presidential action is not reviewable under the AP A; (2) Plaintiffs have not identified a "final" agency action to be
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reviewed, id. S 704; and (3) the action here was "committed to agency discretion by law," id.

S 701(a)(2).

A. Presidential Action

The Government argues that review of the APA Claims is not available because Plaintiffs

challenge the Proclamation, which was issued by the President, who is not subject to APA review.

It is firmly established that presidential action is not subject to APA review. See Franklin v.

Massachusetts, 505 U.S. 788, 800-01 (1992). Although Plaintiffs correctly note that they have

named federal agency officials as Defendants as well, the Government argues that the bar on AP A

review of presidential action extends to agency actions taken under a delegation of presidential

us. authority, citing Ancient Coin Collectors Guild v.

Customs & Border Protection, 801 F.

Supp. 2d 383 (D. Md. 2011), aff'd, 698 F.3d 171 (4th Cir. 2012), in which the district court held

that an AP A challenge to import restrictions imposed by the State Department and CBP was

improper because those agencies were exercising delegated authority from the President, whose

authority derived from a statute. Id. at 404. On appeal, however, the Fourth Circuit did not

endorse the view that AP A review of agency action is unavailable when the agency acts at the

direction of the President and instead conducted an APA review and affirmed on the grounds that

the action was not arbitrary and capricious. Ancient Coin Collectors Guild v. Us. Customs &

Border Prot., 698 F.3d 171,183-84 (4th Cir. 2012). The Government has identified no other

authority in support of this proposition.

By contrast, courts regularly apply AP A review to agency actions taken in direct response

to a presidential directive, such as an Executive Order. For example, when President Obama

issued an Executive Order directing the National Institutes of Health ("NIH") to conduct human

stem-cell research, the resulting NIH Guidelines for Human Stem Cell Research were properly

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the subject of APA review for failure to follow procedural requirements. Sherley v. Sebelius, 689

F.3d 776, 780, 784-85 (D.C. Cir. 2012). Likewise, in Zhang v. Slattery, 55 F.3d 732 (2d Cir.

1995), after President George H.W. Bush issued an Executive Order directing enhanced

consideration for asylum candidates who fear persecution for defying China's one-child policy,

the resulting final rule published by the Attorney General was reviewed for compliance with the

rulemaking requirements of the AP A. Id. at 740, 743-45. Most recently, in East Bay Sanctuary

Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018), after President Trump issued a proclamation
under 8 U.S.C. S 1182(f) aimed at preventing immigrants who did not enter the United States

through ports of entry from seeking asylum, the court conducted APA review of an interim final

rule issued by the Department of Justice and DHS implementing that policy with reference to the

us. proclamation. Id. at 1236-37, 1251-52; see also City of Carmel-by-the-Sea v.

Dep't of

Transp., 123 F.3d 1142, 1166 (9th Cir. 1997) (holding that an agency's findings of compliance

with requirements of Executive Orders directing agencies to minimize the adverse effects of

federal action on wetlands were subject to arbitrary and capricious review under the AP A).

Here, the actions of the State Department and DHS to implement the Proclamation were

taken at the direction of the President, based on statutory authority specific to the President, rather

than an agency, to suspend the entry of certain classes of foreign nationals. See 8 U.S.C.
S 1182(f). In light of the foregoing precedent, the Court declines to find that AP A review of the

implementation of the Proclamation is foreclosed because the agency action was taken in response

to presidential action.

B. Final Agency Action

The Government further argues that even if AP A review may be conducted on agency

actions flowing from the Proclamation, Plaintiffs have not identified any "final agency action"

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reviewable under the APA. Under the APA, judicial review is available for an "agency action made reviewable by statute" or for "final agency action for which there is no other adequate
remedy in a court." 5 U.S.C. S 704. An action is final ifit is both (1) "the consummation of the
agency's decisionmaking process," not a "tentative or interlocutory" decision; and (2) a decision "by which rights or obligations have been determined" or from which "legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 178 (1997). In the pending Complaints, Plaintiffs have identified two categories of final agency action: (1) action by the State Department and DHS preceding the Proclamation, particularly actions taken during the worldwide review referenced in the Proclamation; and (2) actions by those departments taken after the issuance of the Proclamation to implement its directives.
1. Pre-Proclamation Agency Action In the first category, the IAAB Plaintiffs list as "final agency action" the recommendations and acts that the State Department and DHS took before the issuance of the Proclamation, including the "creation of a baseline criteria," the "collection of data," and the "identification of various countries as inadequate" under the baseline criteria. IAAB 2d Am. Compi. ~ 120. The Zakzok Plaintiffs also name pre-Proclamation actions by the agencies, including DHS's development and application of criteria to evaluate "the information-sharing practices, policies, and capabilities of foreign governments," as violating the APA. Zakzok Am. Compi. ~ 106. Such actions taken to provide information and data to aid in the making of a presidential
decision do not qualify as "final agency action." 5 U.S.C. S 704. In Franklin, the Supreme Court
clarified the meaning of "final agency action" in the context of the making of a decision reserved by law to the President. 505 U.S. at 796-97 .. There, the President, pursuant to a statutory requirement, transmitted to Congress a statement with both the raw results of the census and the
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resulting number of seats in the House of Representatives for each state going forward, based on 1990 decennial census data provided in a report from the Secretary of Commerce. Id. at 792. Massachusetts asserted an AP A challenge to the reapportionment of congressional seats on the grounds that the Secretary of Commerce had improperly allotted overseas federal employees to state populations based on their "home of record" designation, which was a deviation from prior years' practice. Id. at 794-95. Because the number of representatives was fixed not by the Secretary of Commerce's report, but by the President's statement to Congress, the Secretary's action was not a "final agency action," and the President's action was not reviewable under the APA because he was not an "agency." Id. at 797-98,800-01. The Court reasoned that while a final action has a "sufficiently direct and immediate" impact and "direct effect" on "day-to-day business," an action that is "tentative" or consists of "the ruling of a subordinate official" is not final. Id. at 797 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 151, 152 (1967)). "The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Id.
Likewise, in Dalton v. Specter, 511 U.S. 462 (1994), the Supreme Court rejected an APA claim challenging the Secretary of Defense's selection of military base closure criteria and recommendations on specific military bases to close under the Defense Base Closure and Realignment Act of 1990, as well as the resulting recommendations on base closures made by an independent commission following public hearings. Id. at 469-70. The commission recommended base closures in a report to the President, who by statute could either approve or disapprove of the findings and was then required to submit a certification of his decision to Congress. Id. at 465. The Court ruled that the base closing decision was made when the President either approved or disapproved of the commission's recommendations, and that the President's
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statutorily required certification to Congress was the final action that effected the base closures. Id. at 469. The Court emphasized that the actions ofthe Secretary of Defense and the commission could not themselves close the bases and that the statute did not limit the President in his discretion to approve or disapprove of the commission's recommendation. Id. at 470. Together, these cases establish that prior agency action that forms the basis of a presidential decision is not reviewable under the AP A where the final agency action is one taken by the President, not the agency.
Here, the agency actions in designing and conducting the "worldwide review," identifying countries that failed to meet the baseline criteria, and producing the DHS report recommending which countries to include in the travel ban and what specific restrictions to impose, were all only recommendations to the President, and, at most, the "ruling of a subordinate official" not subject to APA review. See Franklin, 505 U.S. at 797. By statute, only the President can "by proclamation, and for such periods as he shall deem necessary, suspend the entry of all aliens or a class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions
he may deem to be appropriate." 8 U.S.C. S 1182(f). Thus, like the commission's
recommendation in Dalton, which slated no bases for closure until approved by the President, the agencies' pre-Proclamation actions are not final agency actions subject to APA review. See Dalton, 511 U.S. at 470.
2. Post-Proclamation Agency Action In their AP A Claims, the IRAP and Zakzok Plaintiffs generally challenge postProclamation actions taken by the agencies. Specifically, the IRAP Plaintiffs claim that the "actions of Defendants that are required or permitted by" the Proclamation were contrary to the AP A. IRAP 2d Am. Compi. '11'411~ 16. Similarly, the Zakzok Plaintiffs' AP A claim challenges the agencies' "issuing and implementing the Proclamation." Zakzok Am. Compi. '11'111051,12.
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Plaintiffs do not provide any more specific description of what particular post-Proclamation agency actions they assert to be arbitrary and capricious or adopted without adherence to required procedures.
As discussed above, agency actions implementing a presidential action may be reviewed under the AP A, even when the agency action accomplishes a presidential directive. See supra
part lILA. However, to obtain review under 5 U.S.C. S 704, plaintiffs must identify the
challenged "agency action," defined as including "the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. S 551(13).
A "failure to act" refers to the failure to take a defined "agency action." Norton v. S. Utah Wilderness All., 542 U.S. 55,62-63 (2004). The Supreme Court has interpreted this definition to necessarily require a "discrete" action. Id. Accordingly, courts that have conducted APA review of agency actions implementing a presidential directive are typically presented with a discrete agency rule or decision to review. See, e.g., East Bay Sanctuary Covenant, 909 F.3d at 1236-37 (interim final rule); Sherley, 689 F.3d at 784-85 (agency guidelines); City of Carmel- by-the-Sea, 123 F.3d at 1166 (agency findings of compliance with Executive Orders); Zhang, 55 F.3d at 74345, 748-49 (interim and final rules); Stone v. Trump, 280 F. Supp. 3d 747, 757, 771 (D. Md. 2017) (interim guidance).
By contrast, in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), the Supreme Court concluded that an APA challenge to a Bureau of Land Management ("BLM") "land withdrawal review program" did not seek review of a "final agency action" within the meaning
of S 704, because it did not challenge a particular BLM order or regulation, or even a specific
individual classification termination made by the BLM. Id. at 890. "Under the terms of the APA, [a plaintiff] must direct its attack against some particular 'agency action' that causes it harm." Id.
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at 891. In Chamber a/Commerce v. Reich, 74 F.3d 1322 (D.C Cir. 1996), for example, the court held that the plaintiffs "could not possibly have relied on the AP A for a cause of action prior to the Secretary's issuance of regulations implementing the Executive Order." Id. at 1326.
Plaintiffs have not identified any cases in which courts have conducted AP A review for compliance with substantive and procedural requirements without a defined final agency action. Rather, they focus on the prior determinations by this Court and higher courts that the Proclamation could be reviewed for whether it violates the Constitution or the INA, and precedent permitting the review of presidential action for compliance with the Constitution or federal statutes.
Such reliance is misplaced. At the preliminary injunction phase, the Court's review of Plaintiffs' statutory claims was limited to the argument that the Proclamation violated certain provisions of the INA. lRAP I, 265 F. Supp. 3d. at 605. Because Plaintiffs had framed their statutory claims with reference to the APA as the vehicle for asserting their claims, the Court referred to the AP A in ruling that it could review the Proclamation for compliance with the INA.
See id. at 603-04; see also 5 U.S.C. S 706(2)(B)-(C) (permitting review of agency actions for
compliance with the Constitution and statutes). In so ruling, however, the Court relied on precedent allowing for review of presidential action outside of the AP A context to determine whether it violated a substantive federal statute. See lRAP I, 265 F. Supp. 3d. at 603-04. Specifically, the Court relied on Reich, in which the court held that, outside the context of the AP A, judicial review of an Executive Order for compliance with federal statutes was available through a suit against the agency implementing that order, in that case the Department of Labor. Reich, 74 F.3d at 1328. Specifically, the Reich court held that it could review a claim that President Clinton's Executive Order barring agencies from contracting with employers that
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permanently replaced lawful strikers on high-value contracts violated the National Labor Relations Act. Id. at 1324, 1328-29. The court reasoned that it was "untenable to conclude that there are no judicially enforceable limitations on presidential actions" that would "bypass scores of statutory limitations on governmental authority." Id. at 1332. Under Reich, Plaintiffs' claim that the President's Proclamation exceeded his delegated authority under the INA, which has since been dismissed, was properly subject to judicial review. See id.; lRAP I, 265 F. Supp. 3d. at 60304.
In Hawaii I, the Ninth Circuit, in concluding that it could review the Proclamation for compliance with the INA, similarly referenced the APA, but saw fit to separately conclude that even in the absence of any "final agency action," based on Reich and other precedent, courts can review presidential action that exceeds statutory authority, separate and apart from the AP A. Hawaii I, 878 F.3d at 680-83; see also lRAP 11,883 F.3d at 287-88 (Gregory, C.J., concurring) (finding both APA final agency action and inherent judicial authority to review "executive action alleged to exceed statutory grants of authority"). In Hawaii II, the Supreme Court assumed without deciding that the plaintiffs' statutory claims were reviewable, but noted that in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), it had considered the merits ofa claim that an Executive Order violated the INA. Hawaii II, 138 S. Ct. at 2407.
Beyond Reich and Sale, other courts have considered suits challenging a presidential action as contrary to statutory authority without reference to the AP A. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 555-56 (1976) (reviewing, through a suit against the Federal Energy Administration, a challenge to a Presidential Proclamation modifying the Mandatory Oil Import Program as beyond the President's statutory authority); see also Haitian Refugee Ctr. v. Gracey, 809 Fold 794, 797-98 (D.C. Cir. 1987) (considering, through a lawsuit
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against the United States Coast Guard and the Immigration and Naturalization Service, claims that an Executive Order directing agencies to prevent illegal migration by sea violated the Refugee Act, the INA, the Constitution, and an extradition treaty and statute, finding that plaintiffs lacked standing to pursue the claims, but noting that if plaintiffs had standing, they might have been able to "challenge the interdiction program as ultra vires the President's statutory and constitutional authority").
Thus, although it is firmly established that a court may review presidential action to determine whether it conflicts with, or exceeds the authority granted by, a federal statute, courts so ruling have generally relied on authority outside the APA. It does not follow from this precedent that presidential action such as the Proclamation can be deemed "final agency action" for purposes of a claim that it violates the substantive and procedural requirements of the AP A such as the arbitrary-and-capricious standard and the notice-and-comment rulemaking requirement.
Where the Proclamation cannot constitute the "final agency action," Plaintiffs have not identified any discrete, post-Proclamation action taken by an agency that can be characterized as a final agency action, in the form of a legislative rule, an interim final rule, a policy statement, an interpretive rule, or an order. At the hearing on the Motion, the Court inquired whether Plaintiffs were challenging certain referenced documents or materials, such as portions of the State Department website relating to the Proclamation or internal State Department or DHS guidance regarding how to implement the Proclamation, but Plaintiffs failed to define the "final agency action" they challenge. Plaintiffs similarly have not presented a claim that the agencies have
failed to take an action required by the Proclamation or by law. See 5 U.S.C. S 551(13) (defining
"agency action" to include an agency's "failure to act"); S. Utah Wilderness All., 542 U.S. at 64
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(holding that an agency's failure to act must be "discrete" and an action the agency "is required to take" to be reviewable under the AP A (emphasis omitted)).
The Court recognizes that identifying a final agency action is no easy task, given that the State Department and DHS appear not to have complied with the Proclamation, which requires them to take certain actions such as adopting guidance regarding the waiver process and
submitting reports to the President, Procl. SS 3(c), 4(a), 5(a), or have hidden this compliance from
public scrutiny. Although Plaintiffs have noted in their Opposition to the Motion that the Proclamation mandates the issuance of guidance relating to the Proclamation's waiver provisions, they do so in the context of arguing the merits of the Motion, not in identifying a final agency action. They do not specify, and make no claim in the Complaints, that the failure to issue any rule or guidance to implement the waiver provisions of the Proclamation, or to comply with any other legal requirements triggered by implementation of the Proclamation, is itself a "final agency action." See Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997) ("[The plaintiff] is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint."), aff'd, 141 F.3d 1162 (4th Cir. 1998). The Court is left genuinely uncertain as to what theory, if any, Plaintiffs pursue that would constitute a challenge to a final agency action. Because Plaintiffs have not identified an articulable final agency action underlying their APA Claims, the Court will dismiss the APA Claims without prejudice. Nevertheless, where Plaintiffs persuasively allege in their Complaints that they continue to be harmed by the Proclamation because it subjects them to prolonged and indefinite separation from their family members, Plaintiffs will be granted leave to amend their complaints to address this deficiency. See Fed. R. Civ. P. 15(a)(2).
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Because the Court finds Plaintiffs' Complaints deficient on this point, it does not address the Government's remaining arguments, that the action is not reviewable because it is committed to agency discretion, that Plaintiffs' claims fail arbitrary-and-capricious review, and that any rules
promulgated by the agencies are not subject to the requirements of 5 U.S.C. S 553 because they
fall under the foreign affairs exception. IV. Constitutional Claims
The Government argues that Plaintiffs' Constitutional Claims "are foreclosed" because the Supreme Court held that the plaintiffs were unlikely to succeed on the merits of their Establishment Clause claim in Hawaii II. Mot. Dismiss 21, ECF No. 265-1. Specifically, the Government argues that because the Court found that the Proclamation set forth "a sufficient national security justification to survive rational basis review," Hawaii II, 138 S. Ct. at 2423, the Constitutional Claims cannot succeed. The Government also argues that Plaintiffs have failed to allege personal injury sufficient to prevail on their due process, Establishment Clause, and equal protection claims.
A. Hawaii v. Trump 1. The Supreme Court Opinion
In Hawaii II, the Supreme Court vacated a preliminary injunction on the Proclamation in part on the grounds that the plaintiffs had not "demonstrated a likelihood of success on the merits of their constitutional claim." Hawaii II, 138 S. Ct. at 2423. In reaching this conclusion, the Court applied the legal standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that pursuant to Congress's plenary power over immigration, courts review a claim that a consular officer denied a visa iri contravention of constitutional rights to determine only whether there was a "facially legitimate and bona fide reason" for the denial, and that courts will not "look
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behind the exercise of that discretion." Id at 770 (rejecting a claim that the denial of a visa to Mandel, a Marxist, violated the First Amendment rights of professors who invited him to speak because the Government offered the facially legitimate reason that on a prior visit, Mandel had engaged in activities outside the scope of his visa); Hawaii II, 138 S. Ct. at 2419. Although Mandel involved the denial of an individual visa, the Supreme Court stated that the narrow Mandel standard applies to "different contexts and constitutional claims," including visa denials and "broad congressional" policies, and "has particular force" in cases "that overlap with the area of national security." Hawaii II, 138 S. Ct. at 2419 (citing Fiallo v. Bell, 430 U.S. 787, 795 (1977), and Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring)).
In applying the Mandel standard to the Proclamation, the Supreme Court found that the Proclamation was facially neutral as to religion and provided a national security justification for its issuance and thus was "facially legitimate." See id at 2420; see also Kerry v. Din, 135 S. Ct. 2128,2140-41 (2015) (Kennedy, J. concurring) (stating that a decision denying admission to the United States is "facially legitimate" if the Government provides a statutory basis for the denial); Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding ofthe Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.") (citation omitted)). As for the "bona fide" prong, the Fourth Circuit and this Court, relying on Din, had previously equated that requirement to a lack of any "affirmative showing of bad faith" by the decisionmaker and concluded that, if there is a particularized showing of bad faith, a court should then "look behind" the action to evaluate its justification. Din, 135 S. Ct. at 2041 (Kennedy, J. concurring); see IRAP II, 883 F.3d at 264; IRAP 1,265 F. Supp. 3d at 617.
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However, the Supreme Court, while declining to "define the precise contours" of a Mandel inquiry in the context of the present case, concluded that it should "look behind the face of the Proclamation to the extent of applying rational basis review." Hawaii II, 138 S. Ct. at 2420. The Court defined rational basis review as an assessment, including consideration of "extrinsic evidence," under which the Court would "uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." Id.
Applying this standard, the Supreme Court held that on the record before it, "the Government has set forth a sufficient national security justification to survive rational basis review" and that the plaintiffs therefore had "not demonstrated a likelihood of success on the merits of their constitutional claim." Id. at 2423. The Supreme Court also concluded that the proffered purposes of "preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices" were legitimate. Id. at 2421. It chose not to infer "religious hostility" from the fact that five of the Designated Countries have Muslimmajority populations, because those countries had been "previously designated by Congress or prior administrations as posing national security risks." !d. It credited the thoroughness of the pre-Proclamation worldwide review and rejected the plaintiffs' efforts to undermine the Proclamation on the basis that it deviates in part from the results of the baseline criteria evaluation. Id. Highlighting the national security context and deferring to "the Executive's predictive judgments on such matters," the Supreme Court dismissed assertions of the Proclamation's supposed overbreadth or failure to serve national security interests. Id. at 2421-22. To further support its finding of an independent, constitutional justification for the Proclamation, the Supreme Court noted that three Muslim-majority countries have been removed from the travel ban since its inception with EO-I, that the entry restrictions are "conditional" on the Designated
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Countries' failure to share information adequately, and that the agencies are required to conduct' "ongoing" efforts to reevaluate the ban. Id. at 2422. It also stressed that the Proclamation does not impose a complete ban on nationals from the Designated Countries, but instead contains exceptions for lawful permanent residents and certain categories of nonimmigrant visas. Id. Finally, the Supreme Court emphasized that the Proclamation created a waiver process, to be set forth in guidance to be issued by the State Department and DHS, to allow the case-by-case admission of foreign nationals who do not pose a threat to public safety, whose denial of entry would impose undue hardship, and whose entry would be in the interests of the United States. Id. at 2422-23.
2. Rational Basis As a threshold matter, where the Supreme Court has deemed the Mandel standard to be applicable to the Establishment Clause claim, it necessarily applies to Plaintiffs' other constitutional claims alleging that the Proclamation violates the equal protection and procedural due process components of the Fifth Amendment, the right to freedom of speech under the First Amendment, and the right to freedom of association under the First Amendment. Generally, the Mandel standard has been applied to claims that an immigration policy or statute infringes a U.S. citizen's rights under the Constitution, without regard to which constitutional right is alleged to have been infringed. Specifically, courts have applied the Mandel standard to cases claiming violations of each of the constitutional rights at issue in Plaintiffs' claims. See id. at 2419 (Establishment Clause); Din, 135 S. Ct. at 2139 (Kennedy, J., concurring) (procedural due process); Fiallo v. Bell, 430 U.S. 787,791 (1977) (First Amendment freedom of association and Fifth Amendment equal protection and due process); Mandel, 408 U.S. at 760 (First Amendment freedom of speech); see also Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (Fifth
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Amendment equal protection). The analysis does not differ depending on the right that is alleged to have been impinged. For example, in Fiallo, the Supreme Court applied the same analysis to the plaintiffs' multiple constitutional claims when reviewing the challenged statute under the Mandel standard. See Fiallo, 430 U.S. at 798-99. The Court's application of the Mandel standard and rational basis review to the Proclamation therefore applies equally to all of Plaintiffs' Constitutional Claims.
The rational basis standard is most typically applied to a government classification in "areas of social and economic policy" that "neither proceeds along suspect lines nor infringes fundamental constitutional rights." FCC v. Beach Commc 'ns, Inc., 508 U.S. 307, 313 (1993). Under rational basis review, such a classification is to be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. Courts are not "to judge the wisdom, fairness, or logic" of the classification. Id. In Hawaii II, the Supreme Court summarized the test as requiring a classification to be upheld "so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." Hawaii II, 138 S. Ct. at 2420.
Because "the challenged classification need only be rationally related to a legitimate state interest," Giarratano v. Johnson, 521 F.3d 298, 303 (4th. Cir. 2008), it is not necessary that the reason for the policy offered by the government "actually motivated the" decisionmaker, Beach Commc 'ns, 508 U.S. at 315. Rather, if the purpose "is legitimate and nonillusory, its lack of primacy is not disqualifying." McGinnis v. Royster, 410 U.S. 263, 276 (1973). It does not matter if the law "seems to be unwise or works to the disadvantage of a particular group" or is premised on a "tenuous" rationale. Romer v. Evans, 517 U.S. 620, 632 (1996).
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Although rational basis is a highly deferential standard, it does not always require rejection

of a challenge to a statute or other governmental classification. The Supreme Court has, on

occasion, invalidated governmental classifications for failing to meet this standard. In City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the Court held that a zoning

requirement that a group home for the mentally disabled obtain a special use permit, when other

multi-occupancy homes need not do so, failed rational basis review. Id. at 448-49. In so ruling,

the Court considered all of the proffered reasons for the classification, including that students

from a nearby school might harass the occupants, that the home would be located on a flood plain,

concerns about legal responsibility for the residents' actions, and the size of the residence and

number of occupants. Id. at 449. The Court found that the evidence refuted all of the stated

justifications and was left with the conclusion that the classification rested on "an irrational

prejudice against the mentally retarded." Id. at 449-50.

In another case, the Supreme Court invalidated on rational basis review a restriction on

providing food stamps to households of unrelated individuals where members of Congress had

stated that the measure was aimed at preventing "hippie communes" from receiving food stamps

us. See

Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973). The Court determined that the

proffered reason for the measure, to combat fraud in the food stamp program based on the

unsubstantiated view that households with unrelated individuals were more likely to abuse the

program and include individuals voluntarily remaining poor, did not rationally support a ban on

food assistance to all unrelated households. Id. at 535-36.

Likewise, in Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court, under rational

basis review, invalidated a state constitutional amendment barring governmental action to provide

legal protections to gays and lesbians based on the finding that it was "inexplicable by anything

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but animus toward the class it affects." Id. at 632. The Court rejected the proffered purposes of

conserving resources to fight discrimination against other groups and respecting other citizens'

freedom of association and personal or religious objections, found no "factual context from which

we could discern a relationship to a legitimate state interest," and thus concluded that it was

enacted for the impermissible purpose of making homosexuals "unequal to everyone else." Id. at

635. Under Cleburne, Moreno, and Romer, the Proclamation would fail rational basis review

if the evidence revealed that for each of its stated purposes, either that purpose was not a legitimate

state interest or, if legitimate, there was no rational relationship between the Proclamation and

that purpose, such that the only identifiable purpose was unconstitutional animus toward

Muslims. In effect, Plaintiffs will need to provide evidence to squarely refute the assertion that

the Proclamation is rationally related to the national security goals of preventing entry of

inadequately vetted individuals and inducing other nations to improve information sharing. See

Hawaii II, 138 S. Ct. at 2421.

3.

Motion to Dismiss

Relying on Giarratano, the Government argues that Plaintiffs fail to state a claim on the

Constitutional Claims because their Complaints fail to meet "the burden to negate every conceivable basis which might support" the Proclamation. Giarratano, 521 F.3d at 303 (quoting

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1974». Giarratano, however,

clarified that while a plaintiff must meet this bar to prevail on the merits, it need not do so at the

motion to dismiss stage:
The rational basis standard requires the government to win if any set of facts reasonably may be conceived to justify its classification; the Rule 12(b)( 6) standard requires the plaintiff to prevail if "relief could be granted under any set of facts that could be proved consistent with the allegations." The rational basis

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standard, of course, cannot defeat the plaintiff s benefit of the broad Rule 12(b)( 6) standard. The latter standard is procedural and simply allows the plaintiff to progress beyond the pleadings and obtain discovery, while the rational basis standard is the substantive burden that the plaintiff will ultimately have to meet to prevail. Id. at 303 (citations omitted) (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 459-60 (7th Cir. 1992)). Thus, to prevail on a motion to dismiss for failure to state a claim, "a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to government classifications." Id. at 304 (quoting Wroblewski, 965 F.2d at 460). A set of "conclusory" assertions and claims do not "overcome the presumption of rationality." Id. Unlike in Giarratano, where the complaint contained only conclusory allegations that a policy of not permitting prisoners to make requests for public records under the state Freedom of Information Act was not "rationally related to any legitimate government interest," id., Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims. First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position. IRAP 2d Am. Compi. ~ 55; IAAB 2d Am. Compi. ~ 28 Zakzok Am. Compi. ~ 20. The Complaints further describe statements during the campaign in which President Trump clarified that he would accomplish this Muslim ban by barring entry from certain "territories" because "people don't want me to say Muslim." IRAP 2d Am. Compi. ~ 74; IAAB 2d Am. Compi. ~~ 34-35; Zakzok Am. Compi. ~ 27. On the day that President Trump
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signed EO-I, Rudolph Giuliani, an advisor to President Trump, stated that it was the product of an effort directed by President Trump to put the "Muslim ban" into effect "legally" by using territory as a proxy for religion. lRAP 2d Am. Compi. ~ 65; lAAB 2d Am. Compi. ~ 39; Zakzok Am. Compi. ~ 27. Even after EO-l and EO-2 were withdrawn or enjoined by courts, President Trump made a statement reflecting his intent to issue a third travel ban for 'the same purpose by stating on Twitter that the Justice Department "should have stayed with the original Travel Ban, not the watered down, politically correct version" and that there should be a "much tougher version." lRAP 2d Am. Compi. ~ 190.
Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent ofthe President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due. Hawaii II, 138 S. Ct. at 2418,2420. This Court is equally aware that ignoring "relevant information," like the President's statements here, "undermines judicial legitimacy by making the public believe judicial decisions rest on a false or inaccurate characterization of the governing facts." IRAP II, 884 F.3d at 345 (Wynn, J., concurring). Viewing these facts in the light most favorable to Plaintiffs, these allegations support a conclusion that the Proclamation was issued for the illegitimate purpose of advancing fear and hatred toward Muslims and to impose a particular legal disadvantage on them. See Moreno, 413 U.S. at 534 (invalidating on rational basis review a restriction on providing food stamps to households of unrelated individuals based in part on the finding that statements of legislators revealed that the measure was intended to keep "hippies" and "hippie communes" from benefiting from the food stamp program). Such hostility "cannot
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constitute a legitimate government purpose." Id.; Cleburne, 473 U.S. at 448 (noting that even on rational basis review, the "law, directly or indirectly, cannot give" private biases effect).
Second, although the presence of an impermissible purpose is not sufficient to invalidate a classification on rational basis review, the Complaints also provide specific allegations aimed at refuting "the presumption of rationality" that applies to the Proclamation's stated national security purposes. Giarratano, 521 F.3d at 304 (quoting Wroblewski, 965 F.2d at 460). For example, Plaintiffs assert that while the baseline criteria were established to identify nations that lacked sufficient vetting or information sharing, the Proclamation deviates from those standards: Somalia, a majority-Muslim nation that was not deemed "inadequate" under the baseline criteria, was included in the travel ban. One ofthe seven nations deemed to be "inadequate," Venezuela, is not majority-Muslim and received much less severe travel restrictions, limited only to government officials responsible for the inadequacies. The Proclamation also acknowledges that a total of 16 countries were identified as "inadequate" but provides no explanation for the failure to include them other than that they generally had "improve [d] their performance" following engagement with their governments, without stating whether such improvements resulted in full
compliance with the baseline criteria. Procl. S l(e), (f); IRAP 2d Am. Compi. ~ 215. When
viewed in the light most favorable to Plaintiffs, these allegations of uneven application of purportedly neutral criteria undermine the national security rationale for the Proclamation's travel ban against majority-Muslim nations. See Cleburne, 473 U.S. at 448-50 (finding no rational basis for the denial of a permit to a group home for the mentally challenged in part because stated factors for the decision such as location on a flood plain, doubts regarding legal responsibility, traffic congestion, the size of the building, and the number of occupants applied equally to other types of group homes not subject to the same requirement).
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Third, Plaintiffs have specifically alleged that the waiver process has not been applied in a manner consistent with the stated national security purposes of the Proclamation. Although the Supreme Court found that the Proclamation's waiver process was persuasive evidence of its national security purpose, Hawaii II, 138 S. Ct. at 2422-23, Plaintiffs have asserted that the waiver process is a "pretext for excluding Muslims from the United States" and is not "tailored to address national security risks." Zakzok Am. CompI. ~ 52. Although the "Proclamation directed the State Department and DRS to issue guidance on implementing the waiver process," the agencies "have largely failed to do so," such that "in practice there is no procedure to apply for these waivers." IAAB 2d Am. CompI. ~~ 82-83. Plaintiffs further assert that waivers have been granted at a rate of only approximately two percent, that "thousands" of "individuals who clearly meet the Proclamation's criteria have repeatedly been denied a waiver," and that individuals, such as the mother-in-law of one of the IAAB Plaintiffs, have been denied waivers before they even applied. !d. ~~ 16, 84-85. They also allege, based on statements by former consular officials, that the waiver process is a "fraud," that consular officials were directed "to determine at all possible cost" that an applicant "was not eligible to even apply for the waiver," and that "even if an applicant satisfies the criteria for a waiver, consular officials are not allowed to ... grant a waiver." Id. ~~ 84-85. The allegations of a systematic refusal to grant waivers to individuals who meet stated criteria, including that they do "not pose a threat to the national security or public safety ofthe United States," Proc.s 3(c), further support the inference that the Proclamation is not rationally related to the stated national security interests, but is instead a pretext for discrimination.
Among Plaintiffs' other relevant allegations are that because DRS previously determined that a person's country of citizenship is unlikely to be a reliable indicator of potential terrorist
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activity, the Proclamation's nationality-based suspensions do not further the national security purpose. Moreover, Plaintiffs allege that the travel ban does not rationally advance national security because there already exists legal authority to exclude any potential national security threat, including that individual applicants are required to submit a detailed application and
undergo an in-person interview as part of the visa process. 8 U.S.C. SS 1182(a)(2)-(3), 1202; ef
Moreno, 413 U.S. at 536 (finding no rational basis for a restriction on the provision of food stamps to households with unrelated members in part because the Food Stamp Act already had provisions to address food stamp fraud, the stated justification for the policy).
Taking the allegations in the Complaints in the light most favorable to Plaintiffs, as the Court must at the motion to dismiss stage, the Court concludes that Plaintiffs have put forward factual allegations sufficient to show that the Proclamation is not rationally related to the legitimate national security and information-sharing justifications identified in the Proclamation and therefore that it was motivated only by an illegitimate hostility to Muslims. See Moreno, 413 U.S. at 534-38 (rejecting the Government's argument that the provision helped the Government fight fraud).
The Government argues that the Supreme Court's finding in Hawaii II, on a similar record to the one before this Court, that the Proclamation satisfies rational basis scrutiny forecloses the Constitutional Claims. The fact that the Supreme Court reached this conclusion after consideration of many of the same facts asserted in the Complaints, however, is not dispositive. On a motion for a preliminary injunction, a court reviews the facts available in the limited record before it and makes an assessment on the merits of a claim. See Univ. o/Tex. v. Cameniseh,451 U.S. 390, 395 (1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.");
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see also Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7,20 (2008) (holding that on a motion for a preliminary injunction, the court considers the "likelihood of success on the merits"). Such a merits assessment under rational basis review "requires the government to win if any set of facts reasonably may be conceived to justify its classification." Giarratano, 521 F.3d at 303. Because the rational basis standard "cannot defeat the plaintiff s benefit of the broad Rule 12(b)( 6) standard," on a motion to dismiss the court must view the facts in the light most favorable to the plaintiff and find for the plaintiff "if relief could be granted under any set of facts that could be proved consistent with the allegations." Id. The court must do so because the motion does not test the merits of the case, but only whether the plaintiff is allowed "to progress beyond the pleadings and obtain discovery." Id. Thus, the Supreme Court's assessment on the merits of the particular facts before it, applying the "substantive burden that the plaintiff will ultimately have to meet to prevail," does not answer whether under the highly deferential Rule 12(b)(6) standard, Plaintiffs have stated a plausible claim for relief so as to proceed further. Id. (citations omitted) (quoting Wroblewski, 965 F.2d at 459-60).
Moreover, as the Supreme Court acknowledged, rational basis review is conducted not simply on the face ofthe Proclamation or other policy at issue but contemplates that the court will "look behind" the face of the Proclamation and will include consideration of the "extrinsic evidence" in the record. Hawaii II, 138 S. Ct. at 2420. At the preliminary injunction stage, however, the Supreme Court's analysis focused largely on a review of the statements in the Proclamation itself and the limited extrinsic record consisting primarily of the documented statements ofthe President regarding Muslims. See id. at 2420-23. Notably, the Supreme Court's ultimate determination that the classification in Cleburne failed rational basis scrutiny was based
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on consideration of a record including district court findings of fact. Cleburne, 473 U.S. at 44950.
Here, the pending Complaints already assert additional facts not available at the time of the Supreme Court's ruling. For example, the Supreme Court found that the facts before it relating to the deficiencies in the waiver process "did not affect" its analysis, largely because the information was incomplete or taken from inappropriate sources. Hawaii II, 138 S. Ct. at 2423 n. 7. Since that time, no formal waiver guidance has been issued, and no application process or other procedure has been established for individuals to seek a waiver. The lack of such guidance extended for four months after the Supreme Court's ruling until the filing of the Amended Complaints in October 2018 and apparently has now extended another six months during this Court's consideration of the pending Motion. As asserted by the IAAB Plaintiffs, applicants and their attorneys have been informed that there is no role for legal services to facilitate the waiver process. Even after discussion at the hearing on the Motion, it is unclear whether, as required by the Proclamation, DHS and other departments and agencies have devised a process to assess whether the Proclamation's restrictions should continue or be terminated, and whether the
required periodic reports on this issue have, in fact, been produced. See Procl. S 4. Thus, the
Supreme Court's merits analysis of the Proclamation under rational basis review was based on a preliminary record representing a snapshot in time and does not necessarily preclude a different determination at a later stage of the case on a more fulsome record.
Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified
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the possibility that constitutional claims would proceed. Justice Kennedy stated that "(w]hether judicial proceedings may properly continue in this case in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today's decision, is a matter to be addressed in the first instance on remand." Hawaii II, 138 S. Ct. at 2424 (Kennedy, J., concurring). After discussing the lack of clarity on whether exemptions and waivers are being granted appropriately, Justice Breyer noted that "the Court's decision today leaves the District Court free to explore these issues on remand." Id. at 2433 (Breyer, J., dissenting).
Thus, at the Rule 12(b)(6) stage, where all reasonable inferences are to be drawn in favor of Plaintiffs, Albright, 510 U.S. at 268, Plaintiffs have alleged sufficient facts to overcome the presumption of rationality and thus may "progress beyond the pleadings." Giarratano, 298 F.3d at 303. The Court emphasizes that in denying the motion to dismiss as to the Constitutional Claims, it makes no determination of what discovery Plaintiffs are entitled to receive. It also notes that under rational basis review, Plaintiffs face the tall order of ultimately presenting evidence that not only undermines, but specifically refutes, the Government's contention that the Proclamation is rationally related to the stated legitimate national security purposes. See Cleburne, 473 U.S. at 450 (refuting all proffered legitimate purposes for the classification before invalidating it under rational basis review as resting solely on "irrational prejudice"); Giarratano, 521 F.3d at 303 (requiring the plaintiff to "negate every conceivable basis which might support" the classification to invalidate it under rational basis review).
B. Due Process The Government also argues that Plaintiffs' due process claims must be dismissed because Plaintiffs have no cognizable liberty or property interest that could be burdened by the
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Proclamation. When a plaintiff makes a claim under the Due Process Clause, the court evaluates whether the plaintiff has been deprived of a liberty or property interest, and if so, whether the government's procedures were "constitutionally sufficient." Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). A liberty interest may arise from the Constitution or "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiffs assert that they have alleged a liberty interest in family relationships and family unity, or in the expectations created by the immigration laws and regulations that allow them to petition for visas for their relatives.
In Din, the Supreme Court left open the question whether an interest in family relationships and unity rises to a protected liberty interest in the context of a due process claim. While the three-Justice plurality rejected the existence of such an interest, Din, 135 S. Ct. at 2138 (plurality opinion), Justice Kennedy and Justice Alito assumed without deciding that the plaintiff had a protected liberty interest in the denial of her husband's visa before concluding that her procedural due process rights had not been violated, id. at 214~1 (Kennedy, J. concurring); see Marks, 430 U.S. at 193. Four dissenting Justices concluded that such a liberty interest is cognizable. Din, 135 S. Ct. at 2142--43 (Breyer, J., dissenting). With Din failing to resolve the issue, some courts of appeals have assumed without deciding that individuals have a due process right relating to visa denials of family members. See, e.g., Yafai v. Pompeo, 912 F.3d 1018, 1021 (7th Cir. 2019); Ali v. United States, 849 F.3d 510,515 & n.3 (1st Cir. 2017). The Ninth Circuit has specifically endorsed the existence of such a liberty interest in the context of a U.S. citizen's challenge to the denial of her husband's visa application. Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) ("Freedom of personal choice in matters of marriage and family life is, of course, one ofthe liberties protected by the Due Process Clause."); see also IRAP II, 883 F.3d at
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332 (Wynn, J., concurring) ("[D]enying entry to classes of aliens based on invidious discrimination has the potential to burden the fundamental right of residents to marry the partner of their choice based on nothing more than the partner's race, sex, nationality, or religion."). Where Plaintiffs have offered a due process theory that has been considered but not foreclosed by the Supreme Court, and in fact is recognized by at least one United States Court of Appeals, this Court concludes that dismissal is not warranted. See Metts v. Murphy, 363 F.3d 8, 11 (lst Cir. 2004) (en bane) (per curiam) (holding that dismissal was not warranted where plaintiffs were asserting a novel claim under Section 2 of the Voting Rights Act because "plaintiffs are entitled to an opportunity to develop evidence before the merits are resolved"); Dart Drug Corp. v. Corning Glass Works, 480 F. Supp. 1091, 1098 n.lO (D. Md. 1979) ("Novel legal claims are particularly inappropriate for dismissal if, as here, the Court can infer the existence of facts comprising all of the required elements. A proper test for such a claim is a motion for summary judgment after discovery sufficient to uncover relevant facts has been completed." (citation omitted)).
The Government also argues that even if Plaintiffs have a cognizable liberty interest in reunification with family members, due process was in fact provided in the case of Doe Plaintiff No.6, one of the IAAB Plaintiffs, because his mother-in-law was informed that her visa was denied on the basis of the Proclamation. The Government relies on Justice Kennedy's statement in Din that due process relating to the denial of a family member's visa is satisfied when a notice was provided stating the "specific provision or provisions of law under which the alien is
inadmissible." Din, 135 S. Ct. at 2141 (Kennedy, J. concurring) (quoting 8 U.S.C. S 1182(b)(I)).
The IAAB Plaintiffs, however, have alleged that Doe Plaintiff No. 6's mother-in-law was denied a waiver before she could present information demonstrating that she was eligible for a waiver,
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as contemplated by the Proclamation. The Proclamation requires that waivers be granted only where the "foreign national demonstrate [s] that waivers would be appropriate and consistent"
with the Proclamation "to the consular officer's or CBP official's satisfaction." Procl. S 3(c).
Where Plaintiffs have alleged a lack of due process arising from the failure to implement and follow waiver procedures contemplated by the Proclamation, a scenario not controlled by Din, the Court declines to find at the motion to dismiss stage that Doe Plaintiff No.6 received due process as a matter oflaw. See Metts, 363 F.3d at 11; Dart Drug Corp., 480 F. Supp. at 1098.
Having found the Government's proffered basis for dismissal of the procedural due process claims to be unpersuasive, the Court will deny the Motion as to those claims. Accordingly, and particularly where the Government did not challenge it in its Motion and addressed it only in its reply brief, the Court need not address whether Plaintiffs' alternative procedural due process theory, that they have a liberty interest in the statutory and regulatory provisions for filing petitions on behalf of family members, states a plausible claim for relief. Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) ("[A]n issue first argued in a reply brief is not properly before a court of appeals."); Chang-Williams v. Dep't of the Navy, 766 F. Supp. 2d 604, 620 n.16 (D. Md. 2011) ("Typically, courts will not consider an argument raised for the first time in a reply brief.").
C. Establishment Clause and Equal Protection The Government also contends that Plaintiffs' Establishment Clause and equal protection claims must fail because Plaintiffs have not alleged a violation of their own personal rights. Again, the Government raises an argument that it effectively made in opposing the Motion for a Preliminary Injunction and that this Court did not accept. See lRAP 1,265 F. Supp. 3d at 599602. This Court previously rejected the argument, based on Valley Forge Christian College v.
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Americans United For Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982), that Plaintiffs lacked standing because they had no "personal injury" from the Proclamation and instead held, relying on Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997), that certain Plaintiffs had standing to assert an Establishment Clause claim where they had both "a personal contact with the alleged establishment of religion through the prolonged separation from their family members and a direct injury from the Proclamation through their feelings of marginalization and exclusion" derived from their perception of the Proclamation as hostile to their own Muslim faith. IRAP I, 265 F. Supp. 3d at 601. The Supreme Court, in Hawaii II, similarly found that certain Plaintiffs had standing to assert an Establishment Clause claim based on the "concrete injury" of separation from relatives who sought to enter the United States and their "interest in being united with [their] relatives." Hawaii II, 138 S. Ct. at 2416.
The Government now seeks to repackage its unsuccessful standing argument as a different argument, that Plaintiffs fail on the merits of their Establishment Clause and equal protection claims because their personal rights have not been violated. But the Government's analysis relies almost entirely on case law relating to standing and offers no argument other than that Plaintiffs have suffered no personal injury from the Proclamation. Unlike in McGowan v. Maryland, 366 U.S. 420 (1961), cited by the Government, where there was no evidence that the plaintiffs' religious beliefs were burdened by Sunday closing laws, id. at 429, here, the individual Plaintiffs are themselves Muslims whose own religion is allegedly targeted by the Proclamation. Where this Court has already concluded that the Proclamation could be found to have injured Plaintiffs whose family members were excluded from the United States because of the Proclamation's alleged targeting of Muslims, and the Supreme Court largely validated that conclusion, the Court finds that such Plaintiffs have stated a plausible claim that their constitutional rights under the
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Establishment Clause and the equal protection component of the Due Process Clause were violated by the Proclamation. See Hawaii II, 138 S. Ct. at 2416; lRAP 1,265 F. Supp. 3d at 599602; see also lRAP 11,883 F.3d at 258-60; ef Din, 135 S. Ct. at 1240 (Kennedy, J., concurring) (assuming without deciding that a U.S. citizen has a due process interest in the denial of a visa to her spouse).
CONCLUSION For the foregoing reasons, the Government's Motion to Dismiss, ECF No. 265, is GRANTED IN PART and DENIED IN PART. The Motion is granted as to the APA Claims. Those claims are DISMISSED WITHOUT PREJUDICE, but Plaintiffs will have an opportunity to amend their Complaints. The Motion is DENIED as to the Constitutional Claims. A separate Order shall issue.

Date: May 2,2019

THEODORE D. CHU United States District

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 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.

Civil Action No. TDC-17-0361

IRANIAN ALLIANCES ACROSS BORDERS, UNIVERSITY OF MARYLAND COLLEGE PARK CHAPTER, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. TDC-17-2921

EBLAL ZAKZOK, et al., Plaintiffs, v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. TDC-17-2969

MEMORANDUM OPINION On May 2, 2019, the Court issued a Memorandum Opinion and Order granting in part and denying in part a Motion to Dismiss filed by Defendants ("the Government") in these three cases.

As relevant here, the Court denied the Motion to Dismiss as to Plaintiffs' claims that Proclamation

No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the

United States by Terrorists or Other Public Safety Threats (the "Proclamation"), 82 Fed. Reg.

45,161 (Sept. 27, 2017), violated their rights under the Establishment Clause, free speech, and

freedom of association components of the First Amendment to the United States Constitution, and

the due process and equal protection components of the Fifth Amendment to the Constitution

(collectively, the "Constitutional Claims"). On June 20, 2019, the Government filed a Motion for

Certification of this Court's Opinion for Interlocutory Appeal and for a Stay of Discovery, pursuant
to 28 U.S.C. S 1292(b), requesting that the Court certify its May 2,2019 Memorandum Opinion

and Order for an interlocutory appeal and stay discovery in all three cases until the resolution of

the appeal. Upon review of the submitted materials, the Court finds that no hearing is necessary.

See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is GRANTED IN PART

and DENIED IN PART.

DISCUSSION

I.

Legal Standards

A district court may certify for appeal an order that is not otherwise appealable if it

concludes (1) that the order involves a controlling question of law; (2) as to which there is

substantial ground for difference of opinion; and (3) that an immediate appeal from the order may
materially advance the ultimate termination of the litigation. 28 U.S.C. S 1292(b) (2012).

Piecemeal interlocutory appeals should be "avoided" because review of non-final judgments is

"effectively and more efficiently reviewed together in one appeal" at the end of litigation. James
v. Jacobson, 6 F.3d 233, 23 7 (4th Cir. 1993). Since certification under S 1292(b) should be granted

"sparingly," the statute's requirements must be "strictly construed." United States ex rei. Michaels

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v. Agape Senior Cmty., Inc., 848 F.3d 330,340 (4th Cir. 2017) (quoting Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989».
The United States Court of Appeals for the Fourth Circuit has defined a controlling question of law to be a "pure question of law," that is, "an abstract legal issue that the court of appeals can decide quickly and cleanly." Id. (quoting Mamani v. Berzain, 825 F.3d 1304, 1312 (lith Cir. 2016». A pure question of law does not require the appellate court "to delve beyond the surface of the record in order to determine the facts." Id. at 341 (quoting McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (lith Cir. 2004». In contrast, a question is not a controlling question of law where the appellate court is asked to consider "whether the district court properly applied settled law to the facts or evidence of a particular case." Id. (quoting McFarlin, 381 F.3d at 1259). In Agape, the Fourth Circuit held that whether the Attorney General has "absolute veto power over voluntary settlements in" qui tam actions under the False Claims Act was "(s]uch a pure question of law," but, in contrast, whether statistical sampling was a permissible means of proving the plaintiffs claims "based on the particular facts and evidence in this case" was not a pure question oflaw "subject to ... interlocutory review." Id. at 336, 339, 341.
If "controlling law is unclear," there may be substantial grounds for difference of opinion
for purposes of S 1292(b). Couch v. Telescope Inc., 611 F.3d 629,633 (9th Cir. 2010). Therefore,
courts find substantial grounds "where the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." Id. However, the "mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient." In re Flor, 79 F.3d 281,284 (2d Cir. 1996). Lack of unanimity among courts, North Carolina ex rei. Howes v. WR. Peele, Sr. Trust, 889 F. Supp. 849,852 (E.D.N.C. 1995), and a lack of relevant
3

authority, Union County v. Piper Jaffray & Co., Inc., 525 F.3d 643, 647 (8th Cir. 2008), do not suffice. Similarly, a party's disagreement with the decision of the district court, no matter how strong, does not create substantial grounds. Couch, 611 F.3d at 633.
Under the material-advancement prong, certification of an interlocutory appeal is appropriate only "in exceptional situations in which doing so would avoid protracted and expensive litigation." Fannin v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583, at *2 (4th Cir. 1989) (quoting In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)); see Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,688 (9th Cir. 2011) (holding that an interlocutory appeal would materially advance resolution of litigation where reversal by the appellate court would dismiss one defendant and resolve multiple claims against all defendants, even though it would not resolve the entire case).
In its recent decision in In re Trump, 928 F.3d 360 (4th Cir. 2019), the Fourth Circuit stated
that '''district courts should not hesitate to certify an interlocutory appeal' under S 1292(b) when a
decision 'involves a new legal question or is of special consequence.'" Id. at 369 (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009)). In concluding that certification was warranted, the court highlighted that the district court was the "first ever to permit a party to pursue relief under the Emoluments Clauses," that at least one other district court had disagreed with its reasoning, and that the case presented "novel and difficult constitutional questions," "has national significance," and "could result in an unnecessary intrusion into the duties and affairs of a sitting president." Id. at 368-70. II. Interlocutory Appeal
The Government asks the Court to certify its May 2, 2019 Order granting in part and denying in part the Government's Motion to Dismiss the complaints in all three cases.
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Specifically, the Government requests certification of whether (1) the claim that the Proclamation violates the First and Fifth Amendments should be evaluated under the standard articulated in Kleindienst v. Mandel, 408 U.S. 753 (1972), or under rational basis review, as the United States Supreme Court did in Trump v. Hawaii, 138 S. Ct. 2392 (2018); (2) the Supreme Court in Hawaii held that the Proclamation satisfies rational basis review as a matter of law such that any constitutional challenge to the Proclamation is foreclosed; (3) the Plaintiffs in all three cases have adequately stated a claim that the Proclamation satisfies rational basis review; and (4) Plaintiffs have cognizable legal interests for the purposes of their due process, Establishment Clause, and equal protection claims.
The Court doubts that the issues identified by the Government constitute controlling questions of law as to which there is substantial ground for difference of opinion. Regarding whether the Mandel or rational basis standard applies to constitutional challenges to the Proclamation, the Supreme Court resolved this question in Hawaii by analyzing the Establishment Clause challenge to the Proclamation under the rational basis standard. See Hawaii, 138 S. Ct. at 2420. Thus, unlike in In re Trump, where the interpretation of the Emoluments Clause was a "novel and difficult" matter of first impression, In re Trump, 928 F.3d at 369, here, the Supreme Court has already considered and ruled on this issue. Notably, courts that have been asked to consider the applicable standard since Hawaii have read that opinion as calling for rational basis review of constitutional claims challenging the Proclamation, see, e.g., Arab Am. Civil Rights
League v. Trump, No. 17-10310, 2019 WL 3003455, at *8 (E.D. Mich. July 10, 2019); Alharbi v.
Miller, 368 F. Supp. 3d 527,562 (E.D.N.Y. 2019), such that there is likely not "substantial ground
for difference of opinion," 28 U.S.C. S 1292(b). The Court is equally unpersuaded that whether
Plaintiffs have adequately stated a claim is a controlling question of law, because evaluating that
5

question, like the statistical sampling ruling in Agape, amounts to asking the Fourth Circuit to considered "whether the district court properly applied settled law to the facts or evidence of a particular case." Agape, 848 F.3d at 341.
As to the question whether the Supreme Court has conclusively stated that the Proclamation satisfies rational basis review as a matter of law, this Court concluded in its ruling on the Motion to Dismiss that because rational basis analysis is usually a fact-intensive inquiry made after a full consideration ofthe factual record, the Supreme Court's conclusion was not determinative because it was based on the incomplete and different record before it on a motion for a preliminary injunction in another case, rather than the full record yet to be developed in the present case. See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442--44 (1985) (considering rational basis review on a complete factual record). Even if this issue were deemed a "pure question of law" rather than the application of law to "the facts or evidence of a particular case," Agape, 848 F.3d at 340--41, there is no disagreement among circuits on this issue to date. See Couch, 611 F.3d at 633. The presence of other district courts' disagreement with this Court's analysis, see Alharbi, 368 F. Supp. 3d at 565; Emami v. Nielsen, 365 F. Supp. 3d 1009, 1022-23 (N.D. Cal. 2019), does not necessarily constitute substantial grounds for disagreement. See Couch, 611 F.3d at 633; WR. Peele, Sr. Tr., 889 F. Supp. at 852.
Finally, as for the question whether Plaintiffs have asserted cognizable legal interests for purposes of some of their Constitutional Claims, the question whether they have such an interest for purposes of an Establishment Clause claim has effectively already been presented to and decided favorably by the Supreme Court and Fourth Circuit when both courts found that Plaintiffs had standing to assert that claim. See Hawaii, 138 S. Ct. at 2416 (holding that "a person's interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an
6

Article III injury in fact" for the purposes of an Establishment Clause claim); Int'l Refugee Assistance Project v. Trump ("IRAP"), 883 F.3d 222,258,260 (4th Cir. 2018) (stating that "the same injury can provide Plaintiffs with standing for multiple claims" and finding that plaintiffs demonstrated a cognizable injury in "experiencing prolonged separation from close family members who have been rendered categorically ineligible for visas"), judgment vacated, 138 S. Ct. 2710 (2018). On the question whether a United States citizen has a cognizable liberty interest in reunification with family members for purposes of a due process claim, one circuit has accepted this Court's position, Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); see also IRAP, 883 F.3d at 332 (Wynn, J., concurring), other circuits have assumed the existence of such a right, Yafai v. Pompeo, 912 F.3d 1018, 1021 (7th Cir. 2019); Ali v. United States, 849 F.3d 510,555 & n.3 (1st Cir. 2017), and the Supreme Court has considered but not decided the issue, Kerry v. Din, 135 S. Ct. 2128, 2143-43 (2015) (Kennedy, J., concurring). Under these circumstances, the Government has not shown that there is substantial ground for difference of opinion. Couch, 611 F.3d at 633; WR. Peele, Sr. Tr., 889 F. Supp. at 852.
However, where the Fourth Circuit appears to have expanded the reach of S 1292(b) in In
re Trump, the Court will grant the Motion as to certification of an interlocutory appeal. See In re Trump, 928 F.3d at 368-72. Since the Plaintiffs' Constitutional Claims are their only remaining claims, reversal of the Court's May 2, 2019 ruling denying dismissal of those claims would dispose of the entire case. See Reese, 643 F.3d at 688. Here, Plaintiffs challenge the Proclamation's "admission and exclusion of foreign nationals," which is a "fundamental sovereign" power assigned to the President and Congress, and their claims implicate the sitting President's statements and conduct as facially discriminatory. Hawaii, 138 S. Ct. at 2418. Consequently, this case "has national significance and is of special consequence." In re Trump, 928 F.3d at 368
7

(emphasis omitted). Moreover, other district courts, although without significant analysis, have disagreed with this Court's conclusion that the Supreme Court's finding in Hawaii of a rational basis for the Proclamation based on the record before it on a motion for a preliminary injunction does not foreclose a different finding on a more fulsome record with respect to different parties and claims. See id. at 370-71 (considering a contrary ruling by another district court as illustrating a "substantial ground for difference of opinion"); Alharbi, 368 F. Supp. 3d at 562; Emami, 365 F. Supp. 3d at 1022-23. But see Arab Am. Civil Rights League, 2019 WL 3003455, at *10 (denying a motion to dismiss a constitutional challenge to the Proclamation based on the finding that Hawaii was not dispositive of such challenges). Accordingly, the Government's Motion will be granted. III. Stay of Discovery
Although the Government has stated that it is seeking a stay of discovery pending any
appeal, an appeal under S 1292(b) "shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." 28 U.S.C. S 1292(b). The Court
will not grant a stay at this time. Since the first executive order affecting entry of certain immigrants and nonimmigrants was entered in January 2017, the individual Plaintiffs have been separated from their family members for more than two and one-half years. Some of these family members are elderly, very ill, or at risk of persecution. Where this case has already been subject to a lengthy stay to permit appellate review of the Court's preliminary injunction, an additional stay at this point has significant potential to harm the Plaintiffs, as the Court stated more than a year ago in its April 24, 2018 Memorandum Opinion. See !nt'l Refugee Assistance Project v. Trump, 323 F. Supp. 3d 726, 735-36 (4th Cir. 2018). Conversely, the Court does not find that there will be harm to the Government by not granting a stay. See id. at 735. The Government's claims that discovery requests will improperly burden the Government, and that discovery disputes
8

will impact judicial economy, are premature. The Court will consider and resolve discovery disputes, if any, as they arise, with due regard to all arguments offered by the parties and consideration of the interests of the parties and the need for judicial economy. Accordingly, the Court finds that the balance of the equities does not favor granting a stay.
CONCLUSION For the foregoing reasons, the Government's Motion for Certification of this Court's May 2, 2019 Memorandum Opinion and Order for Interlocutory Appeal and for a Stay of Discovery, will be GRANTED IN PART and DENIED IN PART. The Motion will be granted to the extent that the Court will certify an interlocutory appeal of the Court's ruling on the Motion to Dismiss to the United States Court of Appeals for the Fourth Circuit. The Motion will be denied to the extent that the Court will not stay discovery during the pendency of any appeal. Date: August 19,2019
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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1990
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, on behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members; ARAB AMERICAN ASSOCIATION OF NEW YORK, on behalf of itself and its clients; YEMENI-AMERICAN MERCHANTS ASSOCIATION, on behalf of itself and its members; IRAP JOHN DOE #4; IRAP JOHN DOE #5; IRAP JANE DOE #2; MUHAMMED METEAB; MOHAMAD MASHTA; GRANNAZ AMIRJAMSHIDI; SHAPOUR SHIRANI; AFSANEH KHAZAELI; IRANIAN ALLIANCES ACROSS BORDERS; IAAB JANE DOE #1; IAAB JANE DOE #3; IAAB JANE DOE #5; IAAB JOHN DOE #6; IRANIAN STUDENTS’ FOUNDATION, Iranian Alliances Across Borders Affiliate at the University of Maryland College Park; EBLAL ZAKZOK; FAHED MUQBIL; ZAKZOK JANE DOE #1; ZAKZOK JANE DOE #2,
Plaintiffs - Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF STATE; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary of State; JOSEPH MAGUIRE, in his official capacity as Acting Director of National Intelligence; MARK A. MORGAN, in his official capacity as Senior Official Performing the Functions and Duties of the Commissioner of U.S. Customs and Border Protection; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; WILLIAM P. BARR, in his official capacity as Attorney General of the United States,
Defendants - Appellants.
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FORMER NATIONAL SECURITY OFFICIALS; MUSLIM BAR ASSOCIATIONS; MUSLIM LAW STUDENT ASSOCIATIONS; CUNY-CLEAR; ADVOCATES FOR YOUTH; BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE; CHICAGO LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW; FREEDOM FROM RELIGION FOUNDATION; JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW; LAMBDA LEGAL DEFENSE AND EDUCATION FUND; MISSISSIPPI CENTER FOR JUSTICE; NATIONAL CENTER FOR LESBIAN RIGHTS; NATIONAL URBAN LEAGUE; PEOPLE FOR THE AMERICAN WAY FOUNDATION; SOUTHERN COALITION FOR SOCIAL JUSTICE; WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,
Amici Supporting Appellees.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:17-cv-00361-TD; 8:17-cv-02921-TDC; 1:17-cv02969-TDC)

Argued: January 28, 2020

Decided: June 8, 2020

Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.

Reversed and remanded with instructions to dismiss by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Judge Richardson joined.

ARGUED: Joshua Paul Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Mark William Mosier, COVINGTON & BURLING LLP, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, H. Thomas Byron III, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellants. Nimra H. Azmi, MUSLIM ADVOCATES, Washington, D.C.; Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C.; Lala R. Qadir, Jack Boeglin, Laura Dolbow, COVINGTON & BURLING LLP, Washington, D.C., for IAAB Appellees. Justin B. Cox, Atlanta, Georgia, Mariko Hirose, Linda Evarts, Kathryn Claire Meyer, New York, New York, Melissa Keaney, INTERNATIONAL REFUGEE
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ASSISTANCE PROJECT, Fair Oaks, California; Max S. Wolson, NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California; Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, New York, New York, Cecillia D. Wang, Cody H. Wofsy, Spencer E. Amdur, San Francisco, California, David Cole, Daniel Mach, Heather L. Weaver, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C.; David Rocah, Deborah A. Jeon, Sonia Kumar, Nicholas Taichi Steiner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland, for IRAP Appellees. Faiza Patel, Harsha Panduranga, Brennan Center of Justice, NEW YORK UNIVERSITY SCHOOL OF LAW, New York, New York; Jethro Eisenstein, PROFETA & EISENSTEIN, New York, New York; Lena F. Masri, Gadeir Abbas, Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C.; Robert A. Atkins, Liza Velazquez, Andrew J. Ehrlich, Steven C. Herzog, Meredith Borner, Luke J. O’Brien, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, for Zakzok Appellees. Harold Hongju Koh, Rule of Law Clinic, YALE LAW SCHOOL, New Haven, Connecticut; Phillip Spector, MESSING & SPECTOR LLP, Baltimore, Maryland, for Amici Former National Security Officials. Adeel A. Mangi, Sofia G. Syed, Abigail E. Marion, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, for Amici Muslim Bar Associations, Muslim Law Student Associations, and CUNY-Clear. Lynne Bernabei, Alan R. Kabat, BERNABEI & KABAT, PLLC, Washington, D.C., for Amici Advocates for Youth, Bend the Arc: A Jewish Partnership for Justice, Chicago Lawyers’ Committee for Civil Rights under Law, Freedom from Religion Foundation, Judge David L. Bazelon Center for Mental Health Law, Lambda Legal Defense and Education Fund, Mississippi Center for Justice, National Center for Lesbian Rights, National Urban League, People for the American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

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NIEMEYER, Circuit Judge: This action — consisting of three separate actions with varying procedural histories
that have been consolidated and that currently challenge the President’s Proclamation 9645 imposing restrictions on the entry of foreign nationals from specified countries — is back before us for the third time, after having twice been addressed by the Supreme Court. The plaintiffs’ complaints allege that the Proclamation violates their rights under the Establishment Clause, as well as under other clauses of the Constitution, because it lacks a rational relationship to legitimate national security concerns and is motivated solely by anti-Muslim animus.
The government filed a motion to dismiss the plaintiffs’ complaints for failure to state a claim based mainly on the Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), which reversed a preliminary injunction against the enforcement of Proclamation 9645 that had been issued on facts that are essentially the same as those alleged in the complaints before us. The Hawaii Court held that the government had “set forth a sufficient national security justification to survive rational basis review” and therefore that the plaintiffs had not demonstrated that they were likely to succeed on the merits of their claims. Id. at 2423.
The district court found Hawaii to be inapposite, concluding that Hawaii’s holding was limited to the review of a preliminary injunction, where the question was whether the plaintiffs, without having yet had the opportunity to engage in discovery, had demonstrated that they were likely to succeed on the merits of their constitutional claims. The district court concluded therefore that Hawaii does not control here, where the question is whether
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the plaintiffs have plausibly stated a claim upon which relief can be granted. Taking the plaintiffs’ factual allegations in the light most favorable to them, the court held that the plaintiffs had put forth “factual allegations sufficient to show that the Proclamation [was] not rationally related to the legitimate national security and information-sharing justifications identified in the Proclamation [but] . . . was motivated only by an illegitimate hostility to Muslims.” (Emphasis added). It thus denied the government’s motion to dismiss the plaintiffs’ constitutional claims.
Reviewing the district court’s interlocutory order by virtue of its certification under 28 U.S.C. § 1292(b) and our order granting permission to appeal, we conclude that the district court misunderstood the import of the Supreme Court’s decision in Hawaii and the legal principles it applied. Informed by Hawaii, we reverse and remand with instructions to dismiss the plaintiffs’ complaints.
I A. Background Shortly after taking office in January 2017, President Donald Trump issued Executive Order 13769, which restricted for 90 days the entry into the United States of foreign nationals from seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — while the Secretary of Homeland Security conducted a review of the adequacy of information provided by all foreign governments about their nationals seeking to enter the United States. The enumerated countries had been previously identified by Congress or prior administrations as posing heightened terrorism risks. Soon thereafter, however, a
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district court in the State of Washington issued a nationwide injunction enjoining the enforcement of several provisions of the executive order, see Washington v. Trump, No. 17-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), and the Ninth Circuit denied the government’s motion to stay the order pending its appeal, see Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam).
Rather than challenge that decision further, the President issued a revised executive order — Executive Order 13780 — which again directed the Secretary of Homeland Security to “conduct a worldwide review to identify whether, and if so what, additional information [would] be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the [Immigration and Nationality Act (“INA”)] . . . in order to determine that the individual is not a security or public-safety threat.” Exec. Order No. 13780, 82 Fed. Reg. 13209, § 2(a) (Mar. 6, 2017). This executive order suspended for 90 days the entry of foreign nationals from six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — with the stated purpose of reducing the “investigative burdens on relevant agencies” during the pendency of the worldwide review and mitigating the risk that dangerous individuals would be admitted before the government finished implementing “adequate standards . . . to prevent infiltration by foreign terrorists.” Id. § 2(c); see also id. § 1(d) (noting that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones”).
As with the first executive order, the enforcement of Executive Order 13780 was also promptly enjoined, first by the district court in this case and then by a district court in
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Hawaii. See Int’l Refugee Assistance Project (IRAP) v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017); Hawaii v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017). And both injunctions were upheld on appeal, although on different grounds. See IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam). The Supreme Court granted certiorari in both cases and, pending its review, stayed the injunctions in part, allowing the entry restrictions to go into effect as to those foreign nationals who lacked “a credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017) (per curiam). But when the 90-day suspension period provided by Executive Order 13780 lapsed before the Court could take further action, the Court recognized that the challenges had become moot, and it vacated both our judgment affirming the district court’s grant of preliminary injunctive relief, as well as the Ninth Circuit’s. See Trump v. IRAP, 138 S. Ct. 353 (2017) (mem.); Trump v. Hawaii, 138 S. Ct. 377 (2017) (mem.).
On September 24, 2017, the President issued Proclamation 9645, which is the subject of this appeal, entitled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” 82 Fed. Reg. 45161 (Sept. 24, 2017). This Proclamation recounted how the worldwide review prescribed by Executive Order 13780 had culminated with the submission to the President in July 2017 of a report from the Department of Homeland Security (“DHS”), which established a “baseline” for information required from foreign governments to help the United States be able “to confirm the identity of individuals seeking entry . . . and to assess whether they [were] a security or public-safety threat.”
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Procl. § 1(c). That baseline, which was developed by the Secretary of Homeland Security in consultation with the Secretary of State and the Director of National Intelligence, included criteria for three categories of information: (1) an identity-management information category, which focused on whether a foreign government ensured the integrity of its nationals’ travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity-related information; (2) a national security and public-safety information category, which considered whether a foreign country shared information on its nationals’ criminal history and suspected terrorist links, provided travel document exemplars, and facilitated the United States’ receipt of information about passengers and crew traveling to the United States; and (3) a national security and public-safety risk assessment category, which focused on various indicators of national security risk, including whether the country was a known or potential terrorist safe haven and whether it regularly failed to receive its nationals when they were subject to final orders of removal from the United States. Id.
The Proclamation then described how DHS had “collected data on the performance of all foreign governments” relative to the baseline, Procl. § 1(d), and evaluated those data to determine that 16 countries were “inadequate” with respect to their identity-management protocols, information-sharing practices, and security-risk factors and that another 31 countries were “at risk” of becoming inadequate, id. § 1(e). It also explained how the State Department thereafter followed up on DHS’s evaluation by “conduct[ing] a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either ‘inadequate’ or ‘at risk,’ to improve their performance with respect to the baseline.”
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Id. § 1(f). As a result of that engagement, many foreign governments improved their performance significantly. For example, 29 countries provided DHS with exemplars of their travel documents, and 11 agreed to share information on known or suspected terrorists. Id.
As the Proclamation recounted, following the engagement period, the Secretary of Homeland Security concluded that the governments of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen remained “inadequate” so as to warrant restrictions on the ability of their nationals to enter the United States. Procl. § 1(g). Iraq was likewise deemed “inadequate,” but the Secretary concluded that entry restrictions with respect to Iraqi nationals were not warranted because of the Iraqi government’s “close cooperative relationship” with the United States and the significant presence of American military forces there, among other reasons. Id. The Secretary recommended instead that Iraqi nationals seeking entry be subject to “additional scrutiny.” Id. Separately, the Secretary determined that although the government of Somalia “generally satisfie[d] the informationsharing requirements of the baseline,” its inability to cooperate with the United States in certain respects and the terrorist threats within its territory “present[ed] special circumstances” warranting the imposition of entry restrictions on certain of its nationals. Id. § 1(i). The Secretary thus submitted another formal report to the President on September 15, 2017, which recommended that he limit the entry into the United States of foreign nationals from eight countries — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. See id. §§ 1(h)–(i).

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The Proclamation stated that the President evaluated the Secretary of Homeland Security’s recommendations with the aid of various members of his Cabinet and White House staff, including the Secretary of State, the Secretary of Defense, and the Attorney General, see Procl. § 1(h)(i), and ultimately decided to impose certain restrictions on the entry of individuals from the eight countries, see id. §§ 1(h)–(i). In doing so, the President expressly invoked “the authority vested in [him] by the Constitution and the laws of the United States of America,” including 8 U.S.C. §§ 1182(f) and 1185(a). Id. Preamble. The Proclamation stated that, in the President’s judgment, the restrictions were necessary “to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information”; “to elicit improved identity-management and informationsharing protocols and practices from foreign governments”; and otherwise “to advance [the] foreign policy, national security, and counterterrorism objectives” of the United States. Id. § 1(h)(i).
The restrictions, as set forth in Section 2 of the Proclamation, varied by country based on findings that were made as to each country’s “distinct circumstances.” Procl. § 1(h)(i). Three countries — Iran, North Korea, and Syria — were found inadequate under the DHS baseline, and the entry of all of their nationals, either as immigrants or nonimmigrants, was suspended, except for Iranians seeking to enter the United States on nonimmigrant student and exchange-visitor visas. Id. §§ 2(b)(ii), (d)(ii), (e)(ii). Three other countries — Chad, Libya, and Yemen — were found to be inadequate with respect to the DHS baseline but were nonetheless considered to be “valuable counterterrorism partner[s],” and therefore the Proclamation suspended only “[t]he entry into the United
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States of [their] nationals . . . as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.” Id. §§ 2(a), (c), (g). Because Somalia generally satisfied the information-sharing requirements of the DHS baseline but was found to have “significant identity-management deficiencies,” as well as a significant terrorist presence within its territory, id. § 2(h)(i), the Proclamation suspended immigrant entry for its nationals and provided for “additional scrutiny” of those seeking to enter as nonimmigrants, id. § 2(h)(ii). Finally, for Venezuela, the Proclamation adopted more focused entry restrictions — i.e., suspending the entry of certain government officials and their family members on nonimmigrant business and tourist visas — that responded to the country’s refusal to cooperate fully on immigration issues while accounting for the fact that the United States was nevertheless capable of independently verifying the identity of Venezuelan entrants through other sources. Id. § 2(f).
The Proclamation’s restrictions applied to nationals of the eight countries who were outside the United States on the effective date and who did not have a valid visa or comparable travel document. See Procl. § 3(a). It exempted, among others, lawful permanent residents and foreign nationals who had been granted asylum. Id. § 3(b). Moreover, the restrictions were made waivable by U.S. immigration officials in cases where affected foreign nationals demonstrated that denying them entry would cause them undue hardship, that their entry would not pose a threat to national security or public safety, and that their entry would be in the national interest. See id. § 3(c)(i); see also id. § 3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national

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“ha[d] previously established significant contacts with the United States” or “s[ought] to enter . . . to visit or reside with a close family member”).
Finally, the Proclamation required the Secretary of Homeland Security, in consultation with other Cabinet officers, to assess the circumstances of the eight countries on a regular basis (i.e., every 180 days), taking into account any change in their performance relative to the DHS baseline, and to recommend whether the restrictions should be modified, continued, or terminated. See Procl. § 4.
Pursuant to this review process, in April 2018 the President accepted the Secretary of Homeland Security’s assessment that Chad had sufficiently improved its practices, and he lifted the entry restrictions on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937 (Apr. 10, 2018). And even more recently, in January 2020, the President issued Proclamation 9983, stating that DHS had updated the methodology it used to assess compliance with the baseline criteria and had conducted a new worldwide review using its refined performance metrics. See Proclamation No. 9983, 85 Fed. Reg. 6699 (Jan. 31, 2020). Following this review and consistent with the recommendation of the Acting Secretary of Homeland Security, the Secretary of State, the Secretary of Defense, and other Cabinet-level officers, the President decided (1) to “leave unaltered the existing entry restrictions imposed by Proclamation 9645” on Iran, North Korea, Syria, Libya, Yemen, Somalia, and Venezuela and (2) to impose new “entry restrictions and limitations on nationals from six additional countries” — namely, Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania — who seek to enter the United States as immigrants. Id. Preamble.

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B. Proceedings Shortly after Proclamation 9645 was issued in September 2017, 23 individuals and 7 organizations either commenced an action or amended a complaint in a preexisting action, and the three separate actions were consolidated in this challenge to the legality of the Proclamation. The individual plaintiffs include U.S. citizens and lawful permanent residents who have relatives seeking to enter the United States from countries subject to the Proclamation’s entry restrictions. One or more of these plaintiffs have relatives who have been denied visas pursuant to the Proclamation and have been deemed ineligible for a waiver. The plaintiffs named as defendants the President, several Cabinet officers and other high-ranking officials, DHS, the Department of State, and the Office of the Director of National Intelligence. The plaintiffs’ complaints alleged that Proclamation 9645, like the two executive orders that preceded it, was motivated by “anti-Muslim animus” and had used the citizenship of the identified foreign countries as “a proxy for religion” in order to limit the entry of Muslims into the United States, in violation of the First Amendment’s Establishment Clause and other constitutional provisions. To advance those allegations, the complaints relied mainly on a series of statements the President had begun making when he was a presidential candidate, starting with a written statement he released a few days after the December 2015 terrorist attack in San Bernardino, California, that called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” They alleged that then-candidate Trump also made statements like “Islam hates us” and the United States was “having problems
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with Muslims coming into the country.” The complaints alleged further that candidate Trump began to indicate in the summer of 2016 that, instead of suspending the entry of all Muslims, he would instead use the authority of the presidency to temporarily ban “immigration from nations tied to Islamic terror” until “extreme vetting” mechanisms could be put in place for those areas of the world. In addition to the constitutional claims, the complaints alleged that the Proclamation also violated the INA, the Administrative Procedure Act (“APA”), and other statutes.
On the plaintiffs’ motion, the district court issued a nationwide preliminary injunction on October 17, 2017, against the Proclamation’s enforcement, concluding that the plaintiffs were likely to succeed in showing that the Proclamation violated both the INA and the Establishment Clause. See IRAP v. Trump, 265 F. Supp. 3d 570, 606–29, 631–32 (D. Md. 2017). With respect to the latter, the court relied heavily on the President’s statements from campaign rallies and on Twitter and reasoned that the Proclamation stood in the “shadow” of the President’s two previous executive orders. Id. at 622. The court also found that “the Proclamation fail[ed] adequately to explain . . . the need [for] . . . an unprecedented, sweeping nationality-based travel ban against majority-Muslim nations.” Id. at 626. At bottom, the court found that the plaintiffs were likely to show that the “primary purpose” of the Proclamation was “the desire to impose a Muslim ban” and that therefore it likely violated the Establishment Clause. Id. at 628. Finding that the other criteria for a preliminary injunction were also satisfied, the court enjoined enforcement of the Proclamation’s entry restrictions as to foreign nationals — except for those from North

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Korea and Venezuela — who “ha[d] a credible claim of a bona fide relationship with a person or entity in the United States.” Id. at 631.
On the government’s motion, the Supreme Court issued an order staying the district court’s injunction pending appeal. Trump v. IRAP, 138 S. Ct. 542 (2017) (mem.).
On appeal, we affirmed the district court’s injunction. IRAP v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc). “Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself,” we “conclude[d] that the Proclamation [was] unconstitutionally tainted with animus toward Islam” and that the plaintiffs were likely to succeed on the merits of their Establishment Clause claim. Id. at 256–57.
Around the same time as our ruling, the Ninth Circuit also affirmed a preliminary injunction issued by a district court in Hawaii against the Proclamation. Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) (per curiam). In doing so, however, the Ninth Circuit relied on the plaintiffs’ INA claims without reaching their Establishment Clause claim. See id. at 702.
The Supreme Court granted the government’s petition for a writ of certiorari in the Hawaii case, 138 S. Ct. 923 (2018), and held the government’s petition in these cases, pending its decision in the Hawaii case.
On June 26, 2018, the Supreme Court reversed the Ninth Circuit’s judgment, concluding that the grant of a preliminary injunction against the Proclamation was an abuse of discretion “[b]ecause plaintiffs ha[d] not shown that they [were] likely to succeed on the merits of their claims.” Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). First, the Court
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concluded that the plaintiffs had failed to make the requisite likelihood-of-success showing with respect to their INA claims because “[t]he Proclamation [was] squarely within the scope of Presidential authority” afforded by that statute. Id. at 2415. And second, as more relevant here, the Court concluded that the plaintiffs had not shown that they were likely to succeed on the merits of their Establishment Clause claim because “the Government ha[d] set forth a sufficient national security justification” for the Proclamation “to survive rational basis review.” Id. at 2423.
A few days after handing down its ruling in Hawaii, the Supreme Court granted the government’s writ of certiorari in these cases, vacated our judgment affirming the district court’s preliminary injunction against the Proclamation, and remanded the cases to us “for further consideration in light of Trump v. Hawaii.” Trump v. IRAP, 138 S. Ct. 2710 (2018) (mem.). We, in turn, “remanded [the] case[s] to the district court for further proceedings consistent with the Supreme Court’s decision.” IRAP v. Trump, 905 F.3d 287 (4th Cir. 2018) (mem.).
On remand, two groups of plaintiffs filed amended complaints while the third simply dropped certain claims with the result that the plaintiffs as a whole abandoned their statutory claims under the INA and two other statutes but retained their claims under the APA. They also continued to allege that Proclamation 9645 violated the Establishment Clause, as well as other clauses of the First and Fifth Amendments.
The government filed a motion to dismiss the complaints for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), relying principally on the Supreme Court’s decision in Hawaii.
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In an order and memorandum opinion dated May 2, 2019, the district court granted without prejudice the government’s motion to dismiss the plaintiffs’ APA claims, concluding that the plaintiffs had “not identified an articulable final agency action.” IRAP v. Trump, 373 F. Supp. 3d 650, 667 (D. Md. 2019). The court gave the plaintiffs time to amend their complaints, but the plaintiffs elected not do so, and those claims are no longer at issue. The court, however, denied the government’s motion with respect to the plaintiffs’ constitutional claims, rejecting its argument that those claims were foreclosed by Hawaii. The court began by recognizing that “the Supreme Court ha[d] deemed the [Kleindienst v.] Mandel standard to be applicable to the Establishment Clause claim” and that therefore Mandel also “applie[d] to Plaintiffs’ other constitutional claims.” * Id. at 669–70. Indeed, the court specifically acknowledged that “the Mandel standard has been applied to claims that an immigration policy or statute infringes a U.S. citizen’s rights under the Constitution, without regard to which constitutional right is alleged to have been infringed.” Id. at 670. Nonetheless, the court appeared to understand the Mandel standard and the rational basis standard to be one and the same, and therefore it considered only whether the plaintiffs’ constitutional claims were viable under the rational basis standard. See id.
Ultimately, the district court concluded that the plaintiffs had “provided detailed allegations for why the Proclamation [was] not rationally related to its stated national

* In Mandel, the Supreme Court held that in reviewing decisions of the political branches to exclude aliens “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of those within the United States. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).
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security interests and [was] instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.” IRAP, 373 F. Supp. 3d at 672. In reaching its conclusion, the court focused on (1) the plaintiffs’ “detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States”; (2) their allegations that the Proclamation’s entry restrictions had “deviate[d]” in several respects from “the baseline criteria [that had been] established to identify nations that lacked sufficient vetting or information sharing”; (3) their “allegations of a systematic refusal to grant waivers to individuals who me[t] [the] stated criteria”; and (4) their allegations regarding DHS’s previous determination “that a person’s country of citizenship [was] unlikely to be a reliable indicator of potential terrorist activity,” as well as the existence of other sources of “legal authority to exclude any potential national security threat.” Id. at 672–74.
Based on these allegations, the court concluded that the plaintiffs had plausibly alleged that the Proclamation “was motivated only by an illegitimate hostility to Muslims” and was “not rationally related to the legitimate national security and information-sharing justifications identified in the Proclamation.” IRAP, 373 F. Supp. 3d at 674 (emphasis added). The court further reasoned that this conclusion was not precluded by Hawaii because the Supreme Court had determined only that, on the limited record before it, the plaintiffs in that case were not likely to succeed on the merits. That holding, the district court reasoned, “d[id] not answer whether under the highly deferential Rule 12(b)(6) standard, Plaintiffs ha[d] stated a plausible claim for relief so as to proceed further.” Id. at 675. After also rejecting separate arguments advanced by the government as to why the
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plaintiffs’ constitutional claims should be dismissed, the court denied the government’s motion to dismiss any of those claims. See IRAP v. Trump, 404 F. Supp. 3d 946 (D. Md. 2019).
Following entry of its order denying the government’s Rule 12(b)(6) motion, the district court granted the government’s motion for certification of the order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) but denied the government’s motion for a stay of discovery pending appeal.
By order dated September 11, 2019, we granted the government’s motion for permission to appeal under § 1292(b). We also granted its motion for a stay of all district court proceedings.
II Proclamation 9645 restricts the entry of foreign nationals from specified countries, giving reasons for doing so that are related to national security, and it makes no reference to religion. In their complaints, the plaintiffs nonetheless claimed that “[t]he Proclamation [was] irrational [as] a national-security measure and [was] inexplicable by anything but animus toward Muslims,” in violation of the Establishment Clause and other clauses of the Constitution. To make their claims, they relied heavily on statements against Muslims made by the President and his advisers both before and after he was elected. Taking the complaints’ factual allegations as true and in the light most favorable to the plaintiffs at the motion to dismiss stage, the district court concluded that the plaintiffs had sufficiently

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alleged that the Proclamation “was motivated only by an illegitimate hostility to Muslims” and therefore that they had stated plausible claims for relief. IRAP, 373 F. Supp. 3d at 674.
For its primary argument on appeal, the government contends that the district court’s decision “cannot be squared with Hawaii,” which “is binding here and forecloses [the] plaintiffs’ constitutional claims.” In Hawaii, the Supreme Court reversed a preliminary injunction entered against enforcement of Proclamation 9645, holding on virtually the same facts as alleged in the complaints here that “the Government ha[d] set forth a sufficient national security justification to survive rational basis review” and therefore that the “plaintiffs ha[d] not demonstrated a likelihood of success on the merits of their [Establishment Clause] claim.” 138 S. Ct. at 2423. The government argues that instead of following the Supreme Court’s “controlling” decision, the district court “rel[ied] upon, and credit[ed], precisely the same arguments that the Supreme Court rejected in Hawaii.” And, according to the government, “[t]he district court also fundamentally misunderstood the legal standard for applying rational-basis review at the motion to dismiss stage,” as revealed by its “call for a ‘more fulsome’ record” and its focus on the President’s actual motivations for issuing the Proclamation. Finally, the government contends that the Supreme Court’s decision in Hawaii “strongly suggest[ed] that the Proclamation should more properly be analyzed under Mandel rather than rational-basis review.” In Mandel, the Supreme Court held that the Executive’s exercise of delegated power to bar a foreign national’s entry should be reviewed only as to “whether the Executive gave a ‘facially legitimate and bona fide’ reason for its action.” Hawaii, 138 S. Ct. at 2419 (quoting

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Mandel, 408 U.S. at 769). And under that standard, the government reasons, there is no doubt that Proclamation 9645 “survives that more deferential standard.”
The plaintiffs contend that the district court correctly concluded that resolution of the government’s motion to dismiss was not controlled by Hawaii, arguing that the difference in outcomes between Hawaii and the decision below follows from “the different standards applicable to preliminary-injunction and motion-to-dismiss rulings.” According to the plaintiffs, “the Supreme Court [in reversing the entry of a preliminary injunction] did not determine the ultimate merits of the Hawaii plaintiffs’ constitutional claim — it instead ruled only that there was not a sufficient likelihood of success on the merits to warrant preliminary injunctive relief.” Moreover, the plaintiffs argue, the Supreme Court reached this decision “by weighing the limited evidence in a record created solely of publicly available evidence and without discovery.” Accordingly, they conclude, “Hawaii does not foreclose” their constitutional claims, and the district court correctly “applied the well-established standard for deciding motions to dismiss” in holding that they had “plausibly allege[d] that the Proclamation does not rationally further a legitimate state interest” and instead “that the only rational explanation for the Proclamation is anti-Muslim animus.” (Emphasis added).
We review the district court’s order denying the government’s motion to dismiss de novo. And the legal standard for assessing the sufficiency of a complaint on such motion is well established. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” in the sense that the complaint’s factual allegations allow “the court to draw a reasonable
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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This “plausibility standard is not akin to a ‘probability requirement,’” but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id. The question, in other words, is whether the complaint’s “well-pleaded factual allegations,” id. at 679, “plausibly suggest an entitlement to a relief,” id. at 681 — an issue that necessarily turns on the substantive standard that applies to the plaintiffs’ claims. Here, there are two standards that may govern the plaintiffs’ claims that Proclamation 9645’s restrictions on the entry of foreign nationals from specified countries violates their constitutional rights — the Mandel standard, on the one hand, and the rational basis standard, on the other. While important differences exist between the two standards, they are both “highly constrained” forms of judicial review, Hawaii, 138 S. Ct. at 2420, and our application of either standard leads to the same result.
A. Mandel standard Addressing Proclamation 9645 in the face of the same allegation of anti-Muslim animus that is raised here, the Supreme Court in Hawaii stated that the issue “is not whether to denounce the statements” of the President and his advisers. 138 S. Ct. at 2418. “It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” Id. And in answering that question, the Court recognized that, under its longstanding precedent, the President’s statements would not factor into the analysis to the extent that “the Executive
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gave a ‘facially legitimate and bona fide’ reason for its action.” Id. at 2419 (quoting Mandel, 408 U.S. at 769). This is so, the Court explained, because “the authority of the political branches over admission” means that when the Executive provides a “‘facially legitimate and bona fide reason’” for its action in denying entry to foreign nationals, “‘courts will neither look behind the exercise of that discretion, nor test it by balancing its justification’ against the asserted constitutional interests of U.S. citizens.” Id. (quoting Mandel, 408 U.S. at 770). Thus, judicial review of such Executive action must be exceedingly narrow and “highly constrained.” Id. at 2420.
“For more than a century,” the Supreme Court “has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Hawaii, 138 S. Ct. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)); see also, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (“The power of exclusion of foreigners [is] an incident of sovereignty belonging to the [federal] government . . . as a part of those sovereign powers delegated by the [C]onstitution [such that] . . . its exercise . . . when, in the judgment of the government, the interests of the country require it, cannot be . . . restrained on behalf of any one”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“[E]very sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners . . . or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the [C]onstitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political
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department of the government” (citations omitted)); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation”). The Supreme Court invoked and relied on these longstanding principles of immigration jurisprudence in Mandel.
In Mandel, a Belgian journalist and author, Ernest Mandel, was denied a nonimmigrant visa to enter the United States to participate in and speak at a series of academic conferences. In denying him admission to the United States, the Attorney General relied on 8 U.S.C. §§ 1182(a)(28)(D), 1182(a)(28)(G)(v), and 1182(d)(3)(A), which then provided that aliens who advocated or published “the economic, international, and governmental doctrines of world communism” were to be excluded unless granted a waiver by the Attorney General. Mandel admitted that he was a Marxist who fell within the scope of those statutory entry restrictions, and the Attorney General refused to grant him a waiver, reciting as grounds that Mandel had violated the conditions of a prior waiver. Mandel, 408 U.S. at 756, 758–59. Mandel and the university professors in the United States who had invited him to speak filed an action challenging the constitutionality of the relevant statutory provisions and the Attorney General’s exercise of his authority under those provisions. Id. at 759–60. They alleged that the relevant statutory provisions and the Attorney General’s denial of a waiver were unconstitutional because they deprived the American plaintiffs of their First Amendment rights to hear and meet with Mandel. Id. at 760.
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Despite the Supreme Court’s recognition of the professors’ First Amendment rights and the fact that Mandel’s exclusion implicated those rights, see Mandel, 408 U.S. at 762– 65, the Court held that Mandel’s exclusion was lawful, see id. at 769–70. It explained that, based on “ancient principles of the international law of nation-states,” Congress could categorically bar those who advocated Communism from entry, noting that “the power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.” Id. at 765 (cleaned up). And significantly, with respect to the plaintiffs’ constitutional challenge to the Attorney General’s denial of a waiver, the Court forbade judges from interfering with the Executive’s “facially legitimate and bona fide” exercise of its immigration authority. Id. at 770. Specifically, the Court held that “when the Executive exercises . . . power [delegated by Congress to admit or exclude foreign nationals] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of U.S. citizens. Id. (emphasis added).
Since its decision in Mandel, the Court has consistently “reaffirmed and applied its deferential standard of review across different contexts and constitutional claims.” Hawaii, 138 S. Ct. at 2419. In Fiallo, for instance, the Court declined to scrutinize a statute that gave a different immigration preference to a child born out of wedlock depending on whether it was the child’s mother or father who was a citizen or lawful permanent resident of the United States. Although that statute involved two suspect classifications — gender
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and legitimacy — the Court, citing Mandel, nonetheless concluded that “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. Fiallo, 430 U.S. at 799.
Likewise, in Kerry v. Din, 135 S. Ct. 2128 (2015), the Court considered a suit by a U.S. citizen who alleged that the government had violated the Due Process Clause by denying her husband’s visa application without adequate explanation, providing only a citation to the statutory provision under which the visa was denied. Writing for himself and Justice Alito to provide the fourth and fifth votes in favor of the government, Justice Kennedy concluded that the case was “control[led]” by “[t]he reasoning and the holding in Mandel.” Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment). He explained that “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that, because the government had provided Din with a facially legitimate and bona fide reason for its action, Din had no viable constitutional claim. Id. at 2141.
And most recently, of course, the Court in Hawaii not only confirmed Mandel’s continuing vitality but also its applicability in assessing the constitutionality of the very Proclamation that is before us. See, e.g., 138 S. Ct. at 2419 (rejecting “[t]he principal dissent[’s] suggest[ion] that Mandel has no bearing on this case” and emphasizing that “Mandel’s narrow standard of review ‘has particular force’ in admission and immigration cases that overlap with ‘the area of national security’” (quoting Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment))). Moreover, the Court noted that under the Mandel standard, the analysis of Proclamation 9645 would end once a court concluded that
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the Proclamation, on its face, provided reasons that were “facially legitimate and bona fide.” Hawaii, 138 S. Ct. at 2420. And the Court so concluded, finding that “[t]he Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Id. at 2421.
Even were it not for this conclusion by the Supreme Court, we would determine independently that Proclamation 9645 does indeed provide on its face legitimate and bona fide reasons for its entry restrictions. The Proclamation itself states that, following a comprehensive, global review, the eight countries selected for some form of entry restriction were found to have inadequate practices for providing information to U.S. immigration officials or to otherwise present a heightened risk of terrorism. The Proclamation also states that, in the judgment of the President of the United States, countryspecific entry restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information”; “elicit improved identity-management and information-sharing protocols and practices from foreign governments”; and otherwise “advance [the] foreign policy, national security, and counterterrorism objectives” of the United States. Procl. § 1(h)(i). These are most certainly “facially legitimate and bona fide” reasons within the meaning of Mandel, and our review could end with that conclusion. See Hawaii, 138 S. Ct. at 2420.
The Hawaii Court’s analysis of Proclamation 9645 did not, however, end with a facial analysis of the Proclamation under Mandel, even though the Court indicated that it could have. This was because, as the Court explained, the government had suggested “that
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it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order.” Hawaii, 138 S. Ct. at 2420. The Court accommodated that suggestion, stating, “For our purposes today we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.” Id. But in doing so, the Court in no way undermined the conclusion that Mandel provides the applicable standard.
In the decision before us, the district court agreed that Mandel was controlling. Nonetheless, it failed to apply its standard of review properly, moving past the face of the Proclamation to consider in its analysis external statements made by the President. The district court stated that Hawaii “does not instruct courts to disregard these statements or any public pronouncements of a President.” IRAP, 373 F. Supp. 3d at 672. But the Court’s extensive discussion of Mandel in Hawaii indicates just the opposite. See, e.g., Hawaii, 138 S. Ct. at 2420 (recognizing that a “conventional application of Mandel” would “ask[] only whether the policy is facially legitimate and bona fide” (emphasis added)).
As the Supreme Court did, however, we too will proceed beyond consideration of only the facially stated purposes of Proclamation 9645 and determine whether the plaintiffs have alleged plausible constitutional claims under the rational basis standard of review.
B. Rational basis standard Under the rational basis standard, the plaintiffs’ claims challenging the constitutionality of Proclamation 9645 must fail if the Proclamation is even “plausibly related to the Government’s stated objective to protect the country and improve vetting processes” — i.e., if, despite the President’s statements, the policy “can reasonably be
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understood to result from a justification independent of unconstitutional grounds.” Hawaii, 138 S. Ct. at 2420; see also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). The Proclamation must be afforded “a strong presumption of validity,” and “those attacking the rationality of the [policy] have the burden to negative every conceivable basis which might support it.” FCC v. Beach Communications, Inc., 508 U.S. 307, 314–15 (1993) (emphasis added) (cleaned up). Moreover, under the deferential standard, it is “entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated” the decisionmaker. Id. at 315 (emphasis added). When the rational basis review standard is applicable, the Supreme Court, as the Court observed in Hawaii, “hardly ever strikes down a policy as illegitimate.” 138 S. Ct. at 2420.
Applying the rational basis standard of review to the Proclamation that is before us, the Hawaii Court concluded, in no uncertain terms, that “[t]he Proclamation does not fit [the] pattern” established by the handful of cases where a challenged policy did not survive rational basis review. 138 S. Ct. at 2420. “It cannot be said,” the Court concluded, “that it is impossible to discern a relationship” between Proclamation 9645 and “legitimate state interests,” nor can it be said “that the policy is inexplicable by anything but animus.” Id. at 2420–21 (cleaned up). Rather, “there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from [the] religious hostility” that the plaintiffs allege here as the Proclamation’s only plausible basis. Id. The Supreme Court gave a number of reasons for this conclusion.

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First, “[t]he Proclamation is expressly premised on legitimate purposes” — i.e., “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices” — and its “text says nothing about religion.” Hawaii, 138 S. Ct. at 2421. While “five of the seven nations currently included in the Proclamation have Muslim-majority populations,” “that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Id.
Second, the Proclamation “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.” Hawaii, 138 S. Ct. at 2421. While the plaintiffs in Hawaii — much like the plaintiffs here — had argued that “deviations from the review’s baseline criteria resulting in the inclusion of Somalia and omission of Iraq” should “discredit the findings of the review,” the Court observed that the Proclamation had explained why those “determinations were justified by the distinct conditions in each country.” Id. Nor was the Court convinced that the relative brevity of the final report could be used to cast “doubt[] [on] the thoroughness of the multi-agency review” process. Id.
Third, and “[m]ore fundamentally,” the Court addressed the plaintiffs’ suggestion “that the policy [was] overbroad and d[id] little to serve national security interests.” Hawaii, 138 S. Ct. at 2421. It responded, “[W]e cannot substitute our own assessment for the Executive’s predictive judgments on such matters.” Id. “[T]he Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of
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litigation involving sensitive and weighty interests of national security and foreign affairs.” Id. at 2422 (cleaned up).
Fourth, the Court rejected the argument — specifically echoed by the plaintiffs here — that “Congress ha[d] already erected a statutory scheme that fulfills the President’s stated concern about deficient vetting.” Hawaii, 138 S. Ct. at 2422 n.6 (cleaned up). It explained that “[n]either the existing inadmissibility grounds nor the narrow Visa Waiver Program address the failure of certain high-risk countries to provide a minimum baseline of reliable information.” Id.
And fifth, the Court pointed to “[t]hree additional features of the entry policy [as] support[ing] the Government’s claim of a legitimate national security interest.” Hawaii, 138 S. Ct. at 2422. “First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries — Iraq, Sudan, and Chad — ha[d] been removed from the list of covered countries,” and the Proclamation “establishe[d] an ongoing process” to determine whether the restrictions on the remaining countries should be terminated. Id. “Second, for those countries that remain subject to entry restrictions, the Proclamation include[d] significant exceptions for various categories of foreign nationals,” “permit[ting] nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas.” Id. And “[t]hird, the Proclamation create[d] a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants.” Id.
Based on these reasons, the Court concluded that, despite the religious hostility of certain external statements, “the Government ha[d] set forth a sufficient national security justification to survive rational basis review.” Hawaii, 138 S. Ct. at 2423 (emphasis
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added). And every reason that the Hawaii Court gave to reach its conclusion applies here. Yet, despite the Supreme Court’s clear and unambiguous conclusion about the justification for Proclamation 9645, the district court in this case concluded that the plaintiffs had plausibly alleged that the same Proclamation reflected no legitimate purpose. In doing so, it erred as a matter of law. Therefore, even to the extent that the plaintiffs’ constitutional claims are subject to rational basis review, rather than the Mandel standard, the district court should have dismissed them for failing to state a claim to relief that is plausible on its face.
To avoid this conclusion, the plaintiffs attempt to devalue the import of the Supreme Court’s decision in Hawaii. They argue that Hawaii was limited so as not to be controlling here because the Court simply concluded that the plaintiffs before it had “not demonstrated a likelihood of success on the merits of their constitutional claim,” 138 S. Ct. at 2423 (emphasis added), whereas they are entitled to the benefit of all they have alleged in their complaints. Yet, while it is true that the Court’s holding in Hawaii was that the plaintiffs there had failed to show “that they [were] likely to succeed on the merits of their claims,” the reason for that holding was the Court’s predicate unconditional conclusion that the Proclamation “survive[s] rational basis review.” Id. And, although that conclusion was reached in the context of assessing a preliminary injunction, the rational basis finding was not stated on a “likelihood” basis. Rather, the Court stated definitively that “because there [was] persuasive evidence that the entry suspension ha[d] a legitimate grounding in national security concerns, quite apart from any religious hostility,” it was required to “accept that independent justification.” Id. at 2421.
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The plaintiffs argue similarly that the Hawaii Court reached what was merely a preliminary assessment of the merits of the constitutional challenge by “weighing the limited evidence in a record created solely of publicly available evidence and without discovery.” With a different record after the benefit of discovery, according to the plaintiffs, it is at least plausible that they will be able to overcome the government’s evidence and establish their entitlement to relief. But this argument fails to account for the extremely deferential nature of the rational basis standard. Again, the rational basis test asks only whether “there are ‘plausible reasons’” for the government’s action, Beach Communications, 508 U.S. at 313, regardless of “whether the conceived reason[s] . . . actually motivated” the decisionmaker, id. at 315. And because the Supreme Court has already stated that it is possible to “discern a relationship” between the Proclamation’s entry restrictions and “legitimate state interests,” such that the Proclamation is not “inexplicable by anything but animus,” Hawaii, 138 S. Ct. at 2420–21 (cleaned up), we completely fail to see how the plaintiffs’ claims could possibly — let alone plausibly — survive rational basis review.
At bottom, in view of the Supreme Court’s conclusions with respect to Proclamation 9645 in Hawaii, we conclude that the plaintiffs’ constitutional claims in this case lack the plausibility necessary to survive the government’s motion to dismiss under Rule 12(b)(6). Accordingly, we reverse the district court’s order of May 2, 2019, denying the government’s motion to dismiss the constitutional claims and remand with instructions to dismiss the plaintiffs’ complaints with prejudice.

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REVERSED AND REMANDED WITH INSTRUCTIONS

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