Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 1 of 227
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMPet at.,
Defendants.

Civil Action No. I: 17-cv-255

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Plaintiffs- individual Iranian nationals and four national Iranian-American organizations- 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 Preliminary Injunction ("Memorandum"). See Fed. R. Civ. P. 65(a). Plaintiffs seek to enjoin Defendants from enforcing or implementing certain provisions of President Donald J. Trump's Executive Order No. 13,769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." As demonstrated in the Memorandum, the Executive Order and Defendants' implementation of it violate the First and Fifth Amendments of the U.S. Constitution, the Religious Freedom Restoration Act, the Immigration and Nationality Act and its implementing regulations, and the Administrative Procedure Act. Defendants should be enjoined from enforcing or implementing§§ 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order.

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 2 of 227
Pursuant to Local Rule 7(m), counsel for Plaintiffs state that they were unable to discuss this motion with opposing counsel because the initial Complaint was filed today and opposing counsel has not yet been identified.
For the foregoing reasons. Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction.
A proposed Order is attached hereto.

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 3 of 227

Dated: February 8, 2017
Cyrus Mehri (D.C. Bar# 420970) Joanna K. Wasik (D.C. Bar# 1027916)* Amelia Friedman (D.C. Bar# 1033583)* MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Suite 300 Washington, DC 20036 (202) 822-51 00 (202) 822-4997 (fax) cmehri@findjustice.com
U.W. Clemon** MEHRI & SKALET, PLLC 5202 Mountain Ridge Parkway Birmingham, AL 35222 (205) 837-2898 (205) 798-2577 (fax) jclemon@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar# 489887) LAWYERS' COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org

Jo 'A. Freedman (D.C. Bar # 453075) Da id P. Gersch (D.C. Bar# 367469) R. Stanton Jones (D.C. Bar# 987088) Nancy L. Perkins (D.C. Bar# 421574) Allison B. Rumsey (D.C. Bar# 450475)* Ronald A. Schechter (D.C. Bar# 2450 19) RobertN. Weiner(D.C. Bar#298133) Samuel M. Witten (D.C. Bar# 378008)* Lindsey D. Carson (D.C. Bar# 992620)* Sally L. Pei (D.C. Bar# 1030194)* Sonia Tabriz (D.C. Bar# 1025020) Stephen K. Wirth (D.C. Bar# 1034038) ARNOLD & PORTER KAYE SCHOLER LLP 60 I Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell** ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Counselfor Plaintiffs
"'D.D.C. admission pending *"'Pro hac vice motion forthcoming

3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 4 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 5 of 227

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et at.,
Plaintiffs,
v.
DONALD J. TRUMPet al.,
Defendants.

No. _ _ __ Electronically Filed

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

February 8, 2017

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 6 of 227

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........................................................................................................iii

INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 3

A. Trump's Campaign Pledge to Ban Muslims from the United States ...................... 3

B.

The Executive Order ............................................................................................... 4

C.

Defendants' Chaotic Implementation of the Executive Order................................ 7

D.

Effects of the Executive Order on Plaintiffs ......................................................... 10

ARGUMENT ............................................................................................................................... 13

I.

Plaintiffs Are Likely to Succeed on the Merits of Each of Their Claims ......................... 13

A. Establishment Clause ............................................................................................ 13

1.

The Purpose Muslims and

of to

the Executive Order Is to Discriminate Against Favor Christians ..............................................................

I 3

2.

Section 5(b) Facially Differentiates Among Religions............................. 15

3.

Section 5(b) Excessively Entangles the Government with Religion ........ 16

B.

Equal Protection.................................................................................................... 17

1.

The Executive Order Fails Strict Scrutiny ................................................ 18

2.

The Executive Order Fails Even Rational-Basis Review ......................... 20

C.

Due Process........................................................................................................... 20

1.

The Order Violates Residents and Visa

the Due Holders

Process Rights of Lawful Pennanent ............... ......... .. ... ....... ... .......................... ... ..

21

2.

The Order Violates the Due Process Rights of Asylees. .......................... 23

D.

Religious Freedom Restoration Act.. .................................................................... 24

1.

RFRA Applies to the Executive Order and Its Implementation............... 25

2.

Adherence to Islam Qualifies as Religious Exercise................................ 25

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 7 of 227

E.

A43.d. minisITTtnrhhtaeeetriEeEvsexxte.eP.c.cr.uu.o.tt.cii.v.ev.de.e.u.OO.r..err.d.dA.e.e.rcr..tI.S..s..u..N..b....so...t..t.a..N.n....t.a.i...ar..r.l..ol...y.w.....B.l..y..u....r.T..d..a..e..i.n.l..o.s...r...Re...d..e...l..t.i.o.g....i.S.o...e.u...r.s..v...E.e....x.a...p...C.r...e.o..s..m.s....i.p.o...e.n...l...l...i...n......g.............222776

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11

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 8 of 227

TABLE OF AUTHORITIES

Cases

Pagc(s)

Andriasian v. lN.S.,

u.s. 180 F.3d 1033 (9th Cir.
Aptheker v. Sec y ofState,

1999)

.... . ............ ..... ....... ...... ........ .. .... ...... ...... ...... ... ... .. ..... .... ..... .... ... .23

C*BABBoruSni19zrh8C33ow8a174on9e8m8ralSpFlFvD...v..2C.3vrDd.deHt.a.F19oC52m20Cb70.14b5CA0L21y(,ci(9(bL1t(Dtr92oCha.60bCorC41bya.)4iylArC.i)..Std..ii..2trom..o...0n..ri..11ne..v..59s......)9,,..B.3.I....n.)r.....ce.........w....,......e.......r.......,....................................................................................................................................................................................................................................................................................1......3......,........1....4......,........1....6......,....2..1326751

u.s. CC*iiCttyyh45o7uo708r3ff8c5NChUeFlew.o.Sb3f.uOdL4r5ur6n32lk9ee20u,9a(m(nT(11sDie99xB8v.9.C.5a3vD.)b)..Ca.u.C..l.ki..u.rl.e.e...As.b.2..,.yu.0..e.r.1..,n..5..eI..).n....Lc........i...v...v..i.....n.....C.g.......i.C..t....y..t....r..o......,...f.....H.......i....a......l...e.....a......h......,...............................................................................................................................................................................2....9....,.113930 uuu...sss... GGECoomirntddpy4z4o4o9a'o8t2n4l8VDfe7vRsei.gvivHc.e.,hto0aDml8l4d,2eCo76e9p5n2er974'd,nt(6((1tov1r1.9U9of9J9H8.7.ES0A96u).s).)m.p.4...C..i.1a..r...r.8ni....ot....a.(R.s...2.o..Be...0.n.e.s...0..n...C.6.eo......f)o...f..i......O...c,......~..r.....n.e~...t........e....v..........U......S.....n....m...i.....i...ii....t.o....h........,..............................................................................................................................................................................................................................................2......3......,......2......4......,......2.2.161597

u.s. 632
Graham

F.3d 722 (D.C. v. Richardson,

Cir.

2011)

.............................................

...... ... .. .. .... ...... ................... .. .....

...

12

403

365 (1971)................................................................................................................. 17

...
Ill

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 9 of 227

Haig v. Agee,

u.s. 453
Hailian

280 (1981).................................................................................................................2I Refugee Ctr. v. Smith,

676 F.2d 1023 (5th Cir. Harisiades v. Shaughnessy,

I 982)

................ .................................................................................22

u.s. 342
Harris v.

580 (1952)................................................................................................................. 17 McRae,

u.s. H•Heran44va54e5n8ndsUeRz.Sev.a. 3l2Ct69y.37lCR((oI1.r,99p88. 20v))....C.....o....l...e...m......a....n....,............................................................................................................:.....................................................................................11I7

u.s. HHoolbt74bv29y.30HLFoo.b3bbbdsyI6,S18t1o04r(e1(sl9,O8It9nhc).C...vi.r....S..2.e.0b..1e..3l.i.)u...s...,..........................................................................................................................................................................................2143

u.s. 135
lN.S. v.

S. Ct. 853 Chadha,

(2015) ............................................................................................................... 24

Jie

462 Lin v.

919 (1983) ................................................................................................................. 17 Ashcroft,

377 F.3d
KH Outdoor, 458 F.3d
Kleindienst v.

1014 (9th Cir. 2004) .................................................................................................23 LLC v. City ofTrussville, 1261 (lith Cir. 2006) ...............................................................................................32 Mandel,

u.s. 408
Klvong Hai

753 (1972) ................................................................................................................. Chew v. Co/ding,

17

u.s. 344
Landon

v.

590 (1953).................................................................................................................20 Plascencia,

u.s. 459
Lanza v.

21 (1982)...................................................................................................................21 Ashcroft,

389 F.3d 917 (9th •Larson v. Valente,

Cir.

2004)

...................................................................... .......... ............. 22,

23

456U.S.228(1982)..................................................................................................... I2, 15,16

iv

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 10 of 227

League ofWomen Voters v. Newby,

838 F.3d I (D.C. Cir. 2016) ..................................................................................................... 11

u.s. *Lemon v. Kurtzman,

403

602 (1971) ...........................................................................................................12, 13

u.s. Lyng v. 485

Nw.

Indian Cemetery Protective Ass 'n, 439 (1988).................................................................................................................25

u.s. *Mathews v. Eldridge,

424

319 (1976).................................................................................................................20

u.s. *McCreaty, Cnty. v. ACLU ofKy.,

545

844 (2005) ..................................................................................................... 13, 14, 15

McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479 (1991) .................................................................................................................20

Mills v. District ofCo/umbia,

571 F.3d t 304 (D.C. Cir. 2009) ...............................................................................................31

u.s. Motor Vehicles 463 29

M(1f9r8s.3A) .s..s..'.n...v....S. .t.a. .l..e..F...a..r.m....M...u...t....A..u..t.o.....I. n...s....C. ..o. ...,....

.....

.... ........... ... .. ......... .... ..

.........30

*Na9t7'/9FFa.m2dily22P7la(nDn.CingC&ir.R1e9p9r2o)d.....H...e.a..l.t..h..A...s..s..'n....v....S..u..l.l..i.v.a..n..,..................................................28, 30

In re Navy Chaplaincy,

738 F.3d 425 (D.C. Cir. 2013) ...........................................................................................15, 16

Nken v. Holder,

u.s. 556

418 (2009) .................................................................................................................32

Obergefe/1 v. Hodges,

135 S. Ct. 2584 {2015) .............................................................................................................22

*Plyler v. Doe,

u.s. 457

202 {1982)........................................................................................................... 17, 20

u.s. Regents oJUniv. ofCal. v. Bakke,

438

265 (1978)................................................................................................................. 17

u.s. *Romer v. Evans,

517

620 (1996)................................................................................................................. 19

Rosenbaum v. Washoe Cty.,

663 F.3d 1071 (9th Cir. 2011) .................................................................................................21

v

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 11 of 227

u.s. Sha3u4g5hnessy2v0. 6U(n1i9te5d3S).t.a..t.e..s...e.x...r..e.i....M....e..z.e..i.,...........................
Sherbert v. Verner,

.......

.................

.....

.. ... ..... .. ............... 20

u.s. TSatabtb1h3a9a7a8r4ovFs..3Cv.dhNe33r.1Y9to78. .f(T(f2,1ad9x6iC3&i)r..L..1.i.m9..9.o.9.u.).s...i..n....e.....C......o....m.....m........'.n....,................................................................................................................................................................3205

u.s. UUnniit4t5ee00dd19SStFtaa.t3teedss78vv1.9.5WU((2i1dSn9.dC7sC1oior)r.i.,n.2..0.&.0..7.C.)..u....r...r...e....n...c....y....,...................................................................................................................................................................................3224

u.s. Z*aVdi/v41/y.23do93afsSA.vr.CliDnt2.ga52tv2o6isn7(,15H9(e72i70g)1h.3.t.s)...v........M.......e....t..r..o..........H......o....u....s........D......e....v........C.....o....r...p.......,.....................................................................................................................1..1..,..1189

533 U.S. 678 Zetino v. Holder,

(2001

)

.......

.............................

.... ... .................... .................. .. .. ....

........

..........

17,

20

622 F.3d 1007 (9th Cir. Constitutional Provisions

201

0)

...........

.... .. ... .. .. .. .. ...... ... .. .. .. .........

.............

...........

.....................23

U.S. Const. U.S. Const. Statutes

amend. amend.

I ...................................................................................................................... 15 V...............................................................................................................17, 20

uu.s.s..cc.. 88888885UUUUUU...SS.S..SS.S..CC.C..CCC.....§.§§§§§1§1111111272118131038781556l7(282((a(n(b((2a)taao)()))))(2t(..((e3..1)11..)...2..)..)(....)..(A........A.........).......).......................................................................................................................................................................:...............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................2..2.3..2.2.22.2227.2756
vi

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 12 of 227
42 U.S.C. § 2000bb-1(a) ..........................................................................................................23, 24
42 u.s.c. § 2000bb-l(b)................................................................................................................23 42 u.s.c. § 2000bb-2(4)................................................................................................................24 42 u.s.c. § 2000bb-3 ....................................................................................................................24
42 U.S.C. § 2000cc-5(7)(A)...........................................................................................................24 Foreign Affairs Refonn and Restructuring Act of I998, Pub. L. No. 105-277, div.
G, Title XXII, § 2242, 112 Stat. 2681 (1998)..........................................................................22 Other Authorities 8 C.F.R. § 205.2 .............................................................................................................................29 22 C.F.R. part 40 ............................................................................................................................28 22 C.F.R. § 40.6 .............................................................................................................................28 Br. in Supp. ofCommonwealth of Va.'s Mot. for the Issuance ofa Rule to Show
Cause, Aziz v. Trump, Case No. 17-cv-116 (E.D. Va. Feb. 1, 2017), ECF No. 19.............................................. ........ .................. ,.......... ........... ................... ............................... 7 C. Thornton, The Iran We Don't See: A Tour ofthe Country Where People Love Americans, The Atlantic (June 6, 2012) ..................................................................................33 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) ................................................. passim Iraq, CIA World Factbook...................,.......................................................................................... 16 Letter from 23 fonner U.S. officials to President-Elect Donald Trump (Jan. 9, 2017) ........................................................................................................................................33 Letter from Acting Attorney General Sally Yates, U.S. Dep't of Justice (Jan. 30, 2017) ..........................................................................................................................................8 Letter from Deputy Assistant Secretary of State Edward J. Ramotowski, U.S. Dep't of State (Jan. 27, 2017) ....................................................................................................7 Martin Chulov, Iraqi Sunnis Forced to Abandon Homes and Identity in Battle for Survival, Guardian, Apr. 5, 20 15 ............................................................................................. 16 Press release, Senator Marco Rubio, Statement on Iran's Presidential Election (June 14, 2013).........................................................................................................................33 Sen. John McCain, Speak Out for Iran ·and Its Democracy, Arizona Republic, Feb. 5, 2017......................................................................................................................................34
vii

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 13 of 227

Stat(eJmane.n2t 9b,y2S0e1n7a)t..o.r..s..M....c..C..a..i.n...&....G...r..a.h..a..m....o..n...E...x..e.c..u..t.i..v.e...O...r..d.e..r..o...n...I.m...m...i.g..r.a..t..i.o..n.............................8

U.S. Comm' n on Int'l Religious Freedom, 2016 Annual Report (Apr. 2016) ........................33, 34

U.S. Dep't Human

of State, Iran 2015 Human Rights Report, in Country Report on Rights Practices for 2015 ....................................................................................

........

34

U.S. Dep't of State Foreign Affairs Manual Vol. 9 .................................................................28, 29

viii

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 14 of 227
Plaintiffs- individual Iranian citizens and four prominent national Iranian-American organizations- respectfully request a preliminary injunction preventing Defendants from implementing or enforcing President Donald J. Trump's Executive Order No. 13,769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." Among other things, the Order temporarily bars entry to the United States of nationals from seven majorityMuslim countries, including Iran, and temporarily suspends the entire U.S. Refugee Admission Program. The Executive Order and Defendants' implementation of it violate the First and Fifth Amendments of the U.S. Constitution, the Religious Freedom Restoration Act, the Immigration and Nationality Act and its implementing regulations, and the Administrative Procedure Act. Absent preliminary relief, the Order and its implementation will irreparably hann Plaintiffs.
INTRODUCTION
The United States has long had a policy of sheltering Iranian dissidents from persecution in their home country, and of welcoming Iranians who, like so many others from around the world, hope to share in the promise and opportunity that this nation embodies. These immigrants and visitors have felt welcome in our country, and have flourished and contributed immensely to American society: Iranian Americans today include doctors, mathematicians, diplomats, artists, scientists, lawyers, journalists, athletes-, professors, and entrepreneurs. They exemplify the vitality of this nation of immigrants, a nation bound together not by ethnicity or religion, but by the democratic principle that all people are equal before the law.
President Donald J. Trump betrayed this principle with the stroke of a pen. His sweeping
Executive Order, and its unsparing and chaotic implementation by the departments and agencies charged with administering the immigration laws, have separated families, jeopardized careers, and disrupted, even imperiled, lives. Many thousands of members ofthe Iranian-American community have found their world suddenly upended by executive fiat.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 15 of 227
The Executive Order reflects invidious discrimination that President Trump and his advisors have barely sought, and utterly failed, to camouflage. In late 20 IS, Mr. Trump, then a candidate for president, called for "a total and complete shutdown on Muslims entering the United States." Those were Mr. Trump's own words. He and his surrogates repeated them over and over, making a "Muslim ban" a signature promise and rallying cry of the Trump campaign. While Mr. Trump's campaign rhetoric-shifted in response to widespread condemnation of such rank religious discrimination, he left no doubt that his intention remained the same: to ban Muslims. As a candidate and now as President, Mr. Trump in effect tars every Iranian citizen, religious or secular, Muslim or non-Muslim, infant or adult, as a presumptive proponent of "radical Islam" and an incipient terrorist. This stereotyping is un-American. It is offensive and misguided. And it will stand as among the most disgraceful episodes in this nation's history.
This stereotyping is also baseless. From 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran-or any of the other six countries specified in the Executive Order. To the contrary, Iranian nationals have been leaders in our commerce, our communities, and our democratic institutions.
Categorically excluding all Iranians from the United States in furtherance ofan antiMuslim agenda, as the Executive Order does, not only defies rationality; it also repudiates wellestablished law. The U.S. Constitution prohibits the government from officially favoring or disfavoring a religion, and from discriminating on the basis of religion or national origin. The Constitution also forbids the government from depriving individuals of protected rights without due process of law. The Executive Order directs the government to disregard all these prohibitions. Defendants' hasty and chaotic implementation of the Order underscores their disregard for constitutional and statutory rights. By way of example, Defendants summarily revoked tens of thousands of valid visas- many held by individuals already in the United
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 16 of 227
States- and refused entry to Iranian nationals without any of the process that the immigration laws require, functionally repealing dozens ofstatutes and regulations along the way.
It is difficult to overstate the harm that this unlawful usurpation inflicts on countless Iranian Americans and Iranian nationals, both within U.S. borders and beyond. The Executive Order claims precedence over legal process, shunting aside the statutes and regulations that govern the U.S. immigration system. And it extinguishes the rights of many thousands of families, bypassing well-established constitutional limitations. The harm to Plaintiffs from this invidious and discriminatory Executive Order is certain, imminent, and irreparable. This Court should grant Plaintiffs' motion for a preliminary injunction against its enforcement.
FACTUAL BACKGROUND
A. Mr. Trump's Campaign Pledge to Ban Muslims from the United States On December 7, 2015, in the wake of the terror attack in San Bernardino, California, Mr. Trump's presidential campaign issued a written statement that "Donald J. Trump calls for a total and complete shutdown on Muslims entering the United States until our country's representatives can figure out what is going on." This proposed "Muslim ban" became a signature promise of the Trump campaign. On the trail, Mr. Trump and his top advisors and surrogates repeated his call for such a ban time and again. Mr. Trump read or paraphrased the December 7, 2015 statement at numerous campaign appearances. In a television ad released by the Trump campaign on January 4, 20{6, the narrator says that Mr. Trump is "calling for a temporary shutdown of Muslims entering the United States until we can figure out what's going on." During a January 14,2016 televised debate, when asked whether he had rethought his "comments about banning Muslims from entering the country," Mr. Trump responded, "No. Look, we have to stop with political correctness." On March 9, 2016, Mr. Trump said in a televised interview; "I think Islam hates us." Compl. ~~ 49-50 (citing sources).
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 17 of 227
Amid widespread outcry that the proposed Muslim ban would be un-American and unconstitutional, Mr. Trump and his advisors and surrogates shifted their rhetoric to be less explicit, while making clear that their continuing and underlying goal remained to exclude Muslims. On June 13, 2016, after the terror attack in Orlando, Florida, Mr. Trump said in a speech: "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 then specified that the ban would be "temporary," and, rather than targeting Muslims per se, would apply to certain "areas of the world when there is a proven history of terrorism against the United States, Europe, or our allies, until we understand how to end these threats." Compl. ~51 (citing source).
Soon after these statements, in a July 17, 2016 televised interview, Mr. Trump was confronted with his then-running mate Mike Pence's statement calling a Muslim ban unconstitutional. Mr. Trump responded: "So you call it territories, okay? We're gonna do territories." A week later, in a July 24, 2016 interview, Mr. Trump was asked if his recent remarks signified a "rollback" from his proposal for a "Muslim ban." He answered: "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.' Remember this. And I'm okay with that, because I'm talking territory instead of Muslim." And on October 9, 2016, during a televised presidential debate, Mr. Trump stated, "The Muslim ban is something that in some form has morphed into a[n] extreme vetting
from certain areas of the world." Compl. 152 (citing sources).
B. The Executive Order
On January 27, 2017,just one week after the Inauguration, President Trump fulfilled his campaign promise to ban Muslims from entering the United States. He signed Executive Order 13,769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." 82
4

. .._ .

~

·~

. -

.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 18 of 227

Fed. Reg. 8977 (Jan. 27, 2017). At the signing ceremony, after reading the title of the Order aloud, President Trump remarked, "We all know what that means." Compl. ~53.
Among other things, the Executive Order temporarily bars entry of all nationals from seven majority-Muslim countries, including Iran, temporarily suspends the entire U.S. Refugee Admissions Program, establishes a policy of prioritizing Christian refugees upon resuming the program, and indefinitely bars entry of Syrian refugees.
Invoking§ 212(f) ofthe Immigration and Nationality Act ("INA"),§ 3(c) ofthe Executive Order "proclaim[sJ that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(2), would be detrimental to the interests of the United States," and "suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this Order" (with enumerated exceptions not relevant here). The referenced statute,§ 217(a)(12) of the INA, refers directly or indirectly to seven countries: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. All are majority-Muslim countries. Under§ 3(g) of the Order, "the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked" under § 3(c).
Section 5(a) of the Order directs the Secretary of State to "suspend the U.S. Refugee Admissions Program [USRAP] for 120 days." Upon resumption ofUSRAP, Section 5(b) directs the Secretary of State, in consultation with Secretary of Homeland Security, 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." Again invoking§ 212(f) of the INA, § S(c) of the Executive Order "proclaim[s] that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus
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suspend[s] any such entry" indefinitely. And under§ 5(e), during the temporary suspension of the USRAP, "the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission ofsuch individuals as refugees is in the national interest- including when the person is a religious minority in his country of nationality facing religious persecution ...."
President Trump has made clear that the purpose of these provisions is to favor Christian refugees. In an interview with Christian Broadcasting Network just hours before signing the Executive Order, President Trump was asked the following question about his impending new refugee policy: "As it relates to persecuted Christians, do you see them as kind of a priority here?" President Trump replied, ''Yes." He continued, "Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? lfyou were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . . And l thought it was very, very unfair. So we are going to help them." Compl., 61 (citing source).
Just one day after President Trump signed the Executive Order, his advisor and surrogate Rudy Giuliani eliminated any doubt whether the Order is in fact the "Muslim ban" that President Trump repeatedly promised during the-campaign. On January 28, 2017, Giuliani stated: "So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally." Giuliani explained that he assembled a team that came up with a Muslim ban by another name, focusing on places that just happened to be majority Muslim, "where there are [sic] substantial evidence that people are sending terrorists into our country." Compl., 62 (citing source).
On the same day as President Trump signed the Executive Order, the Department of Justice's Office of Legal Counsel issued a one-page memorandum that describes the terms of the
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Executive Order and concludes, in a single sentence without articulating any legal analysis or support, "The proposed Order is approved with respect to form and legality." Compl. ~ 63.
C. Defendants' Chaotic Implementation of the Executive Order The announcement of the Executive Order late in the afternoon on Friday, January 27, 2017, set off immediate chaos and confusion around the world, as senior U.S. officials responsible for the nation's defense and homeland security as well as control of the nation's borders denied having been adequately informed or consulted about the Order. Compl. ~ 74. The same day, the State Department- at the request of the Department of Homeland Security, and "in implementation of section 3(c) of the Executive Order"-issued a one-page document "provisionally revok[ing] all valid nonimmigrant and immigrant visas of nationals or' the seven countries specified in the Order. Letter from Deputy Assistant Secretary of State Edward J. Ramotowski, U.S. Dep't of State (Jan. 27, 2017) ("DOS Letter"). The revocation affected tens of thousands of valid visas held by students, spouses, workers, and numerous others, both in the United States and abroad, without any consideration of the particular circumstances of these individuals. In addition, U.S. Customs and Border Patrol officials blocked visa holders and lawful permanent residents from entering the United States, similarly without any consideration of the particular circumstances of these individuals. Compl. ~ 75. The next day, the U.S. District Court for the Eastern District of New York issued a temporary stay on the detention or deportation of holders of valid visas who had arrived at U.S. airports. Darweesh v. Trump, Case No. 17-cv-480, slip op. at 2 (E.D.N.Y. Jan. 28, 20 17), ECF No. 6. U.S. Customs and Border Protection personnel reportedly failed to comply with the stay. Separately, the Commonwealth of Virginia sought to hold DHS employees in contempt of another court order requiring that individuals detained pursuant to the Executive Order be given
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access to lawyers. Br. in Supp. ofCommonwealth ofVa.'s Mot. for the Issuance of a Rule to
Show Cause, Aziz v. Trump, Case No. 17-cv-116 (E.D. Va. Feb. 1, 2017), ECF No. 19.
Defendants' hasty implementation of the Executive Order and its discriminatory policies sparked dissent across the federal government. On January 29, 2017, U.S. Senators John McCain and Lindsey Graham stated, "It is clear from the confusion at our airports across the nation that President Trump's executive order was not properly vetted. We are particularly concerned by reports that this order went into effect with little to no consultation with the Departments of State, Defense, Justice, and Homeland Security." Statement by Senators McCain & Graham on Executive Order on Immigration (Jan. 29, 2017). The senators continued, "This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security." ld
On Monday, January 30, 2017, Sally Yates, then-acting Attorney General, directed Department of Justice attorneys not to defend the Executive Order. She explained, "I am responsible for ensuring that the positions [the Department of Justice] take[s] in court remain consistent with this institution's solemn obligation to always seek justice and stand for what is right. At present I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful." Letter from Acting Attorney General Sally Yates, U.S. Dep't of Justice (Jan. 30, 2017). In response, President Trump promptly fired Ms. Yates and appointed Defendant Dana J. Boente as acting Attorney General.
At the State Department, approximately 1,000 officials and employees submitted a memorandum through the Department's internal "Dissent Channel," protesting that "[a] policy which closes our doors to over 200 million legitimate travelers in the hopes of preventing a small
8

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Case 1:17-cv-00255-TSC Docu-me- nt 9 Filed 02/08/17 Pa.g. e 22·": o- f 22j 7
number oftravelers who intend to harm Americans from using the visa system to enter the United States will not achieve its aim of making our country safer. Moreover, such a policy runs counter to core American values ofnondiscrimination, fair play, and extending a warm welcome to foreign visitors and immigrants." Compl. ~ 80.
Meanwhile, the chaotic implementation of the Executive Order continued. Defendants changed their positions multiple times regarding the effect and interpretation of key aspects of the Order. For example, on the question whether the Order bars lawful permanent residents from entering the United States, Defendants' views bounced around incessantly:
• The morning after President Trump issued the Executive Order, a Department of Homeland Security spokesperson stated that the Order "will bar green card holders."
• A day later, on January 29, 2017, the White House offered a different interpretation that afforded the Department of Homeland Security discretion, on a case-by-case basis, to admit lawful permanent reside~ts to the United States.
• The same day, the Department of Homeland Security stated: "In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• On February 1, 2017, White House Counsel Donald McGahn issued "authoritative guidance." Acknowledging that "there has been reasonable uncertainty about whether (§§ 3(c) and 3(e) of the Executive Order] apply to lawful permanent residents of the United States," McGahn stated that, "to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals." Compl. ~ 81. On February 3, 2017, the U.S. District Court for the Western District of Washington
temporarily enjoined enforcement of key aspects of the Executive Order nationwide, including
§§ 3(c), 5(a), 5(b), 5(c), and 5(e). Washington v. Trump, Case No. CI 7-141, slip op. at 5-6
(W.O. Wash. Feb. 3, 2017), ECF No. 52. In response to the court's order, a State Department spokesperson announced, "We have reversed the provisional revocation of visas" under the Executive Order, unless they were "physically canceled." Compl. ~ 83. The Department of
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Homeland Security announced that it liad "suspended any and all actions implementing the affected sections ofthe Executive Order" and would "resume inspection of travelers in accordance with standard policy and procedure." ld Late that evening, the Ninth Circuit denied the government's request for an emergency stay. Compl. ~ 84.
D. Effects of the Executive Order on Plaintiffs The Executive Order has inflicted extraordinary harm on countless Iranian Americans and Iranian nationals. Of the estimated 90,000 visas that Defendants revoked on January 27, 2017, nearly half are held by Iranian nationals. Compl. ~ 65. The organizational Plaintiffs have received hundreds of reports from Iran'ian Americans, including dual citizens, lawful permanent residents, and Iranian nationals traveling to this country on valid visas, about the catastrophic effects of the Order. They have been inundated with inquiries from people blocked from boarding flights in airports overseas, or who arrived in the United States and were denied entry. The Executive Order and Defendants' implementation of it have prevented numerous Iranian nationals from relocating to or visiting the United States for work, travel, or study, despite previously obtaining visas. For example, John Doe #3 was slated to begin a four-year research fellowship at a top-ranked hospital in Boston. Ex. 3, Decl. of John Doe #3 19. He was preparing to pick up his approved visa on February 1, 2017, when consular officials told him they could no longer issue it. !d. ~ 17. Defendants' indiscriminate ban on Iranians, regardless of their personal circumstances, has imposed painful family separations, including: • PlaintiffJohn Doe #5 is an Iranian citizen and a post-doctorate fellow in the United States. His wife and infant son, Baby Doe #1, traveled to Iran in early January to introduce Baby Doe #I to John Doe #5's family. The Executive Order has prevented John Doe #5's wife from returning. He is now separated from her and Baby Doe #1, a U.S. citizen, who is too young to travel alone. Ex. 19, Decl. of John Doe #5 ~ 3-13.
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• PlaintiffOmid Moghimi, a dual Iranian-U.S. citizen, has been indefinitely separated from his wife who is currently living in Iran. The day after the Executive Order was signed, they received notice that her February 2, 2017 visa interview had been cancelled. Ex. 7, DecI. of Omid Moghimi ~~ 5, 15-16.
• PlaintiffShiva Hissong, a lawful permanent resident who lives in the United States, was preparing to bring her very ill father and her mother from Iran to visit their new grandchild in the United States. She now fears her parents may never have a chance to meet him. Ex. 6, Decl. of Shiva Hissong~~ 14, 19, 24. In addition, Defendants have jeopardized the safety of Iranian refugees, including:
• John Doe #4 and Jane Does #5, #6, and #7 are Iranian refugees fleeing political persecution who have been approved for resettlement in the United States. They have been stranded in Turkey awaiting safe passage to the United States as a result of the Executive Order. Ex. 18, Decl. of John Doe #4 ~ 2; Ex. 12, Decl. of Jane Doe #5 ~ 2; Ex. 13, Decl. of Jane Doe #6 ~ 2; Ex. 14, Decl. ofJane Doe #7 ~ 2.
• Plaintiff John Does #7 and #8 are in a committed same-sex relationship and faced harassment and threats while living in Iran and rejection by the Muslim community because of their sexual orientation. They are currently living in Turkey and continue to fear for their safety while their refugee applications are on hold. Ex. 21, Decl. of John Doe #7 ~~ 4-7; Ex. 22, Decl. of John Doe #8 ~~ 4-7. The Executive Order also has frustrated the missions of organizational Plaintiffs Pars,
IABA, NIAC, and PAAIA. These organizations have been forced to divert a significant proportion of their resources to responding to the Executive Order and its implementation. They have put pre-existing plans on hold and been unable to perform the regular work that advances their missions, as their staff and leadership are overwhelmed by questions and requests for direct assistance. Over the past eleven days, they have devoted hundreds of hours and diverted resources to assisting Iranian individuals and families whom the Executive Order has left stranded. In addition to its discriminatory intent and impact, the Executive Order leaves
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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 25 of 227
numerous gaps in interpretation, and Defendants have provided conflicting and otherwise inadequate guidance, increasing the strain on the organizational Plaintiffs. 1
The Executive Order and its enforcement have also directly undermined these organizations' missions. The Order conflicts with Pars' efforts to elevate individuals in the Iranian-American community to their highest career potential, and impedes Pars' ability to provide social services and classes to achieve this goal. Ex. l, Decl. ofPars Equality Center ,~ 3-5. IABA, as an organization of lawyers, law students, and judges, supports the rule of law. It is particularly distressed about reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who properly followed all procedures necessary to obtain valid permission to enter the United States face arbitrary, unjust, and discriminatory restrictions on their rights. Ex. 2, Decl. of Iranian American Bar Association,, 12, 24.
Similarly, the Executive Order directly conflicts with NIAC's mission of defending Iranian-American interests against corporate and media bias, discrimination, and government neglect, and monitoring, influencing, and shaping national legislation affecting Iranian Americans. Ex. 3, Decl. ofNational Iranian American Council,~ 27-29. The Order undermines PAAIA's mission to foster greater understanding between the people of Iran and the United States, expand opportunities for the active participation of Iranian Americans in the democratic process, and provide opportunities for advancement for our next generation. Ex. 4, Decl. of Public Affairs Alliance of Iranian Americans ~ 21.
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ARGUMENT

To obtain a preliminary injunction, a party must show that (1) it is likely to succeed on

the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the

balance of equities tips in its favor; and (4) the injunction is in the public interest. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011). Plaintiffs satisfy each of these factors.

I.

Plaintiffs Arc Likely To Succeed on the Merits of Each ofTheir Claims

A. Establishment Clause

Plaintiffs are likely to prevail on the merits of their Establishment Clause claim. "The clearest command of the Establishment Clause is that one religious denomination cannot be
officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). The Executive
Order, in its entirety, violates that clear command because its purpose and effect- as objectively demonstrated by its implementation and President Trump's own repeated statements- is to
discriminate against Muslims. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Moreover, § 5(b) of the Executive Order violates the Establishment Clause for two independent
reasons. It "facially differentiates amQng religions" on the basis of their relative size.
Hernandez v. C.l.R., 490 U.S. 680,695 (1989) (citing Larson, 456 U.S. 228). And it excessively
entangles the government with religion by forcing the government to determine which religions or sects qualify as "a minority religion in [a refugee's] country of nationality." Exec. Order
§ 5(b); see Lemon, 403 U.S. at 612-13.

1.

The Purpose of the Executive Order Is To Discriminate Against Muslims

and To Favor Christians

Under the three-part test set out in Lemon v. Kurtzman, all government action must "(I)

have a secular legislative purpose; (2) have a principal or primary effect that neither advances

nor inhibits religion; and (3) not result in excessive .entanglement with religion or religious

institutions." Bonham v. D.C. Library Admin., 989 F.2d 1242, 1244 (D.C. Cir. 1993) (citing
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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 27 of 227
Lemon, 403 U.S. at 612-13). When the government professes a secular purpose for an allegedly sectarian practice, courts must ensure that the government's stated purpose is "genuine, not a sham," McCrea~y, Cnty. v. ACLU ofKy., 545 U.S. 844, 864 (2005), taking into account the implementation of the policy, its evolution over time, and contemporaneous statements of relevant decisionmakers, Bonham, 989 F.2d at 1244-45. Thus, in McCreary, the Court considered the "evolution" of a Ten Commandments display as evidence that the government's true purpose was sectarian. 545 U.S. at 850. And in Church ofLukumi, Justice Kennedy determined that a facially neutral set of ordinances were, in fact, a "religious gerrymander," by examining "the historical background ofthe decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Church ofLukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520, 540 (1993) (Kennedy, J.,joined by Stevens, J.); see also Bonham, 989 F.2d at 1244-45. A sectarian purpose in itself violates the Establishment Clause. See McCreary, 545 U.S. at 881.
Here, the Executive Order's development, text, and implementation leave no doubt that its purpose is to discriminate against Muslims and to favor Christians. As in McCrea~y, the policy now expressed in the Executive Order underwent an "evolution," 545 U.S. at 850, morphing from "a total and complete shutdown of Muslims entering the United States," Compl. ~ 49, to a "suspen[sion] [of] immigration from areas of the world whe[re] there is a proven history of terrorism against the United.States, Europe, or our allies," Compl. ~51, to its current form: a 90~day bar on all nationals from seven Muslim-majority countries entering the United States, a 120-day suspension of the entire USRAP, with a plan thereafter to prioritize Christian refugees, and an indefinite suspension ofSyrian refugees.
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As President Trump's own words make abundantly clear, this evolution marks a change only in style, not in substance. Throughout the presidential campaign, then-candidate Trump stated that his plan was to ban Muslims. Only when challenged did he shift to discussing national origin as a proxy for religion- a constitutional veneer on an unconstitutional policy. Compl. ~ 62. When presented with his running mate Mike Pence's statement that banning Muslims would be unconstitutional, Mr. Trump responded, "So you call it territories, okay?" Compl. fJ! 52. The following week, Mr. Trump explained, "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. But just remember this: Our Constitution is great. But it doesn't necessarily give us the right to commit suicide, okay?" Compl. ~ 52. And since the Inauguration, President Trump has clarified that the purpose of the Executive Order is not merely anti-Muslim but pro-Christian. Compl. ~ 61.
Immediately prior to signing the Executive Order, President Trump read its title aloud: "Protecting the Nation From Foreign Terrorist Entry Into the United States," adding, " We all know what that means." Indeed we do. This verbal wink aside, the evidence of the President's purpose is overwhelming. It requires no "judicial psychoanalysis of [hisJ heart of hearts." McCreary, 545 U.S. at 862. It has been broadcast-on the campaign trail, on Twitter, in interviews, speeches, and debates-for months. The Executive Order is nothing more than the instantiation ofPresident Trump's campaign promise to keep Muslims out of this country, and it violates the Establishment Clause of the First Amendment.
2. Section 5Cbl Facially Differentiates Among Religions Even aside from the Executive Order's discriminatory purpose,§ 5(b) independently violates the Esta1Jlishment Clause because it creates an unjustifiable "denominational preference" under Larson v. Valente. Larson, 456 U.S. at 246. "Larson teaches that, when it is claimed that
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Case 1:17-cv-00255-TSC

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P. age.29 of 2.27

a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions." In re Navy Chaplaincy, 738 F.3d 425,430 (D.C. Cir. 2013) (quoting Hernandez, 490 U.S. at 695). If it does, the government must show that the law is narrowly tailored to serve a compelling government interest. See id. In Larson, the Supreme Court invalidated a provision of the Minnesota tax code that imposed different tax-reporting requirements on churches based on the source of a church's funding. 456 U.S. at 230-32. Although the provision itself did not explicitly favor one religious group over another, the Supreme Court struck down the provision because it distinguished between different religious groups in a way that amounted to a "denominational preference," thereby violating the "principle, clearly manifested in the history and logic of the Establishment Clause, that no State can 'pass laws which aid one religion' or that 'prefer one religion over another."' /d. at 246.
Section 5(b) of the Executive Order directs the Secretary of State "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." Exec. Order § 5(b). The provision "facially differentiates among religions" on the basis of their relative size, In re Navy Chaplaincy, 738 F.3d at 430, and bestows a "denominational preference" on minority religions, Larson, 456 U.S. at 246. This is precisely the sort of preference that Larson forbids, particularly when the President himself has made clear that the purpose is to favor Christians over Muslims. The government can offer no interest to justify such rank discrimination in these circumstances. Accordingly,§ 5(b) violates the Establishment Clause.
3. Section 5(b) Excessively Entangles the Government with Religion Section 5(b) also violates the third prong of the Lemon test, which forbids excessive governmental entanglement with religion. Bonham, 989 F.2d at 1244. By directing the Secretary of State to prioritize refugee claims brought by members of minority religions, § 5(b)
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"force[s]" the government "to decide matters of 'deep religious significance,' and to 'lend its power to one or the other side in controversies over religious authority or dogma.'" /d. (quoting Aguilar v. Felton, 413 U.S. 402, 414 (1985); Emp 't Div.. Dep 't ofHuman Res. afOre. v. Smith, 494 U.S. 872, 877 (1990), superseded on other grounds, 42 U.S.C. § 2000bb). While President Trump may have thought that he was only creating a preference for Christians, in truth, determining what constitutes a "minority religion" is an inherently sectarian undertaking, involving complicated and delicate questions of religious dogma. For example, will the government distinguish among Sunni, Shia, Alawite, Ismaili, Zaidiyyah, and Druze? And which sects will count as minorities within a given country? Iraq, for example, is majority Shia. Iraq , CIA World Factbook. Yet the Shia population has suffered brutal religious persecution at the hands ofiSIS. Would Iraqi Shi'ites be eligible for priority status under the Executive Order? If not, why not?
The problem is not that these questions are difficult, or even that the State Department might get them wrong. The problem is that however the government decides these questions, it will be forced to consider matters of"deep religious significance" to over one billion Muslims around the world, "lend[ing] its power to one or the other side in controversies over religious authority or dogma." Bonham, 989 F.2d at 1244. Section 5(b) therefore excessively entangles the government with religious questions in violation ofthe Establishment Clause.
B. Equal Protection Plaintiffs are likely to prevail on their Equal Protection claims. The Fifth Amendment has an "equal protection component," Harris v. McRae, 448 U.S. 297,321 (1980), which applies to citizens and non-citizens alike, see Plyler v. Doe, 457 U.S. 202, 210 (1982). If the government employs a suspect class or burdens the exercise of a constitutional right, then strict scrutiny applies, and the government must show that the law is narrowly tailored to serve a
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compelling governmental interest. Regents ofUniv. ofCal. v. Bakke, 438 U.S. 265,357 (1978). Classifications based on national origin and religion are both suspect and trigger strict scrutiny. See Graham v. Richardson, 403 U.S. 365, 371-72 (1971); City ofNew Orleans v. Dukes, 427
u.s. 297, 303 (1976).

While courts generally give more latitude to the political branches in the immigration context, see, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001), this does not free the President to act with impunity. Even in the context of immigration, the government must choose "a constitutionally permissible means of implementing [its] power." lN.S. v. Chadha, 462 U.S. 919,941 (1983). At a bare minimum, the government's interests must be "facially legitimate and bona fide," Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), and not mere "pretense" for invidious discrimination, Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952). By

discriminating on the basis of religion and national origin, the Executive Order triggers and fails strict scrutiny. But regardless, the Order cannot survive any level of review.

1.

The Executive Order Fails Strict Scrutiny

The Executive Order warrants strict scrutiny both because it discriminates on the basis of national origin as a pretense for discriminating against Muslims, and because it discriminates on the basis of religion. The record unequivocally demonstrates that the purpose and effect of the Order is to ban Muslims, i.e. , to discriminate on the basis of religion. The President and his advisors repeatedly said that he would ban Muslims from entering the United States, and that they would use geographic criteria to achieve this impermissible goal. Compl. ~1 49-52. That is exactly what the Executive Order does. It employs discrimination on the basis of national origin as a pretense for discrimination against Muslims. All this triggers strict scrutiny. See Viii. of Arlington Heights v. Metro. Hous. Dev,. Corp., 429 U.S. 252,266-67 (1977) (disparate impact plus discriminatory intent triggers strict scrutiny).

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 32 of 227

The Executive Order cannot withstand strict scrutiny. lt cites three rationales to support its temporary ban on admission of nationals ofseven countries: "To temporarily reduce investigative burdens on relevant agencies[,] to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals." Exec. Order § 3(c). The first rationale-essentially a desire to conserve resources by discriminating- is not compelling. And in any case, the Executive Order is not narrowly tailored to achieve any of these goals. Section 3(c) bans nearly every person from specified countries without any evidence that any individual poses a threat to the United States. The ban applies to infants, children, the elderly, the disabled, patients in need of medical treatment, longtime U.S. residents, refugees fleeing religious persecution, translators and others who assisted the United States in conflicts overseas, and many more whom the government has no reason to suspect are terrorists.2 The government ignores an obvious, less burdensome alternative: the current system. See City ofRichmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989). According to a study conducted by the CATO Institute that reviewed data from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran--or any of the other six countries specified in the Executive Order.3

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2.

The Executive Order Fails Even Rational-Basis Review

While strict scrutiny applies, Plaintiffs would prevail even under a lower level of

scrutiny. Governmental action that is "inexplicable by anything but animus toward the class it

affects ... lacks a rational relationship to legitimate state interests." Romer v. Evans, 517 U.S.

620, 632 (1996). Likewise, the government has no legitimate interest in exploiting "mere

negative attitudes, or fear" toward a disfavored minority. City ofCleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 448 (1985). "The Constitution's guarantee of equality 'must at the

very least mean that a bare . . . desire to harm a politically unpopular group cannot' justify

disparate treatment of that group." United States v. Windsor, 133 S. Ct. 2675, 2693 (2013)

(quoting U.S. Dep 't ofAgric. v. Moreno, 413 U.S. 528,534-35 (1973)). In short, blatant animus

never justifies governmental action.

As described above, the Executive Order reflects impermissible animus against Muslims. See supra pp.14-15. The government's purported national-security justifications for the Executive Order ring hollow. As stated, from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in any of the seven countries specified in the Executive Order. Further, it makes no sense to bar entry to refugees from an oppressive and terroristic government on the ground that the government is oppressive and terroristic. The Executive Order thus bears no "rational relationship to a legitimate governmental purpose," Romer, 517 U.S. at 635, and instead reflects irrational fears about Muslims.

C. Due Process
Plaintiffs are likely to prevail on their Due Process claim. The Due Process Clause of the Fifth Amendment requires that the government, at a minimum, provide fair notice and an opportunity to be heard before denying constitutional and statutory rights. See Mathews v.

20

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 34 of 227

Eldridge, 424 U.S. 319,333 (1976). [n implementing§ 3(c) ofthe Executive Order, Defendants have revoked tens of thousands of valid visas of individuals inside and outside the United States, blocked lawful permanent residents and visa holders from entering the United States, and barred individuals who fear torture and persecution in their home countries from seeking asylum- all without prior notice or even rudimentary proceedings. ln so doing, Defendants have violated Plaintiffs' right to due process.
1. The Order Violates the Due Process Rights of Lawful Permanent Residents and Visa Holders
The Due Process Clause bars any deprivation of life, liberty, or property without due process oflaw for "all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693; see also Plyler, 457 U.S. at 210. Lawful permanent residents, visa holders, and illegal aliens alike enjoy the protections of the Fifth Amendment once they have "passed through our gates," and a "temporary absence from our shores" does not deprive them of the right to due process. Shaughnessy v. United States ex rei. Mezei, 345 U.S. 206, 212-13 (1953). The government may not strip lawful permanent residents of their resident status or visa holders of their visas without constitutionally adequate procedures. See Kwong Hai Chew v. Co/ding, 344 U.S. 590, 601 (1953) (lawful permanent resident's "status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him"); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,482,491 (1991) (undocumented aliens seeking adjustment of status must be afforded due process).4

4
not

While the White House Counsel on apply to lawful permanent residents,

February I, 20 I 7 stated that the that interpretation is contrary to

Executive Order does both the plain text of

(footnote continued on next page)

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 35 of 227

The Executive Order deprives Plaintiffs of protected liberty interests without due process. Some Plaintiffs are lawful pennanent residents or visa holders with significant ties to the United States. For those currently in the country, the Executive Order effectively bars them from traveling abroad. And for those currently traveling abroad, it bars them from re-entering the United States. In either case, the Executive Order deprives Plaintiffs of the right to travel, a constitutionally protected liberty interest. Haig v. Agee, 453 U.S. 280, 307 (1981) (right to international travel may not be denied without due process); Aptheker v. Sec yofState, 378 U.S. 500, 514 ( 1964) (statute denying passports to members of Communist organizations violated due process).

Moreover, some Plaintiffs living in the United States have family in Iran whom they wish to visit. Others have applied for and received visas for family members to join them in the United States or are separated from spouses and children stranded in Iran. The de facto travel ban deprives these Plaintiffs of a protected liberty interest in family integrity, "a right that ranks high among the interests of the individual." Landon v. Plascencia, 459 U.S. 21, 34 (1982); see Rosenbaum v. Washoe Cty., 663 F.3d i071, 1079 (9th Cir. 2011) ("[D]ue process right to family integrity or to familial association is well established."). Other Plaintiffs made wedding plans based on the expectation of receiving spousal visas, and now are unable to come to the United States to get married. The Executive Order interferes with their constitutional right to marriage. See, e.g., Obergefe/1 v. Hodges, 135 S. Ct. 2584,2605 (2015).
Plaintiffs received no notice or process whatsoever before Defendants summarily deprived them of these liberty interests. Pursuant to the Executive Order, Defendants revoked

(footnote continuedfrom previous page)

the Order residents.

and Defendants' prior statements that the Order does apply to lawful Defendants could reverse the most recent interpretation at any time.

pennanent

22

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 36 of 227
the visas of Plaintiffs both in the United States and abroad without warning. Defendants secretly invalidated them without even disclosing that fact to the public or the affected individuals other than in subsequent court filings. Defendants failed to provide any pre- or post-deprivation notice or opportunity to challenge these decisions.
2. The Order Violates the Due Process Rights of Asylees. Under 8 U.S.C. § 1158(a)(1), "(a]ny alien who is physically present in the United States or who arrives in the United States ... may apply for asylum." In addition, an alien may never be removed to a country where "the allen's life or freedom would be threatened ... because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 123l(b)(3)(A); see also U.N. Convention Against Torture ("CAT"), implemented in the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-82 ( 1998) (codified as 8 U.S.C. § 1231 note). Congress has established procedures to implement those statutory rights, which include the right to present evidence in support of a claim for asylum or CAT protection, the right to move for reconsideration of an adverse decision, and the right to seek judicial review of a final order denying an asylum or CAT claim. Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004). These statutes "created, at a minimum, a constitutionally protected right to petition our government for political asylum." Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982). The right to petition for asylum "invoke[s] the guarantee of due process." /d. at 1039; Andriasian v. I.NS., 180 F.3d 1033, 1041 (9th Cir. 1999); see also Lanza, 389 F.3d at 927 ("The due process afforded aliens stems from those statutory rights granted by Congress and the principle that minimum due process rights attach to statutory rights." (internal quotation marks
and brackets omitted)). Due process requires at a minimum that individuals seeking asylum
receive a "full and fair hearing." Zelina v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010). It also 23

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 37 of 227
requires that asylees have the opportunity to consult with an attorney. Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004).
The Executive Order violates the due process rights of individuals seeking asylum because it provides no avenue for them to have their asylum claims heard. By barring entry to the United States for nationals of the seven specified countries, the Order renders the asylum protections above an empty fonnality. This contravenes the due process requirement that asylees receive a "full and fair hearing'' on their claims for relief. Zetino, 622 F.3d at 1013. It also denies asylees their constitutionally protected right to the effective assistance of counsel. Jie Lin, 377 F.3d at 1023.
D. Religious Freedom Restoration Act Plaintiffs are likely to prevail on their RFRA claim. Under RFRA, the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless application of the burden to the person is (1) "in furtherance of a compelling governmental interest"; and (2) "the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a), (b). RFRA claims "should be adjudicated in the same manner as constitutionally mandated applications of the [strict scrutiny] test, including at the preliminary injunction stage." Gonzales v. 0 Centro Espfrila Beneficente Unilio do Vegetal, 546 U.S. 418,430 (2006). The plaintiff bears the initial burden of showing that the governmental action "implicates" and "substantially burdens" his exercise of religion. Holt. v. Hobbs, 135 S. Ct. 853, 862 (20 15). The burden then shifts to the government to show that the policy serves a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-l (a); Holt, 135 S. Ct. at 863. The government must show that the compelling interest test "is satisfied through
24

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 38 of 227
application of the challenged Jaw 'to the person"'- i.e., the particular claimant "whose sincere exercise of religion is being substantially burdened." Gonzales, 546 U.S. at 430-31.
1. RFRA Applies to the Executive Order and Its Implementation. RFRA "applies to all Federal law, and the implementation of that Jaw, whether statutory or otherwise" unless "such law explicitly excludes such application by reference to this chapter." 42 U.S.C. § 2000bb-3. Because all federal laws are presumptively subject to RFRA, "RFRA trumps later federal statutes when RFRA has been violated." Hobby Lobby S!ores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (1Oth Cir. 2013), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). RFRA "override[s] other legal mandates . .. if and when they encroach on religious liberty." /d. at 1156. In this respect, "RFRA is indeed something of a 'super-statute."' /d. at 1157 (Gorsuch, J., concurring). Because RFRA contains no exception for immigration laws or regulations, Congress clearly anticipated that immigration rules of general application, like other federal laws, have the potential to burden the free exercise of religion. Even though "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," if its actions substantially burden a person's exercise of religion, the government must show that they "were in furtherance of a compelljng governmental interest and were the least restrictive means offurthering that interest." Tabbaa v. Chertojf, 509 F.3d 89, 106 (2d Cir. 2007).
2. Adherence to Islam Qualifies as Religious Exercise. "Religious exercise" includes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A). Adherence to a particular belief is, in itself, a core religious exercise. "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Smith, 494 U.S. at 877. The government "may not ... impose special disabilities on the basis of
25

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 39 of 227
religious views or religious status." /d. Certain Plaintiffs here are Muslims by upbringing, by daily practice, or both. Ex. 6, Decl. ofShiva Hissong~ 4; Ex. 7, Decl. ofOmid Moghimi ~ 6; Ex. 8, Decl. of Jane Doe #1 ~ 4; Ex. 17, Decl. of John Doe #3 ~ 5.
3. The Executive Order Substantially Burdens Religious Expression. A "substantial burden" exists when an individual is forced to "choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one ofthe precepts of her religion ... on the other," Sherbert v. Verner, 374 U.S. 398, 404 (1963), or where "governmental action penalize[s] religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens," Lyng v. Nw. Indian Cemetery Protective Ass 'n, 485 U.S. 439, 449 (1988). The Executive Order violates these principles. Section 3(c) ofthe Executive Order imposes a substantial burden on certain visa holders' exercise of religion by curtailing their ability to travel freely to and from the United States. Those who are currently in the United States cannot leave for fear of being denied reentry. This disability burdens the exercise of religious and familial duties. Muslims are required to perform the Hajj, or pilgrimage to Mecca, at least once in their lifetimes, and are encouraged to perform the Umrah, a pilgrimage to Mecca that, unlike the Hajj, can be performed at any time of the year. See Smith, 494 U.S. 877 (noting that "the 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts"). At a minimum, § 3(c)
makes the Umrah impossible to be performed during the 90-day period specified in the order.
Section 3(c) also deprives certain Plaintiffs of the ability to give and receive familial care, which is a religious duty under the Qur'an. Ex. 6, Decl. ofShiva Hissong~ 14; Ex. 19, Decl. of John Doe #5 ~ 6.
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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 40 of 227

4. The Executive Order Is Not Narrowly Tailored to Serve a Compelling Interest.
Because the Executive Order substantially burdens the Plaintiffs' religious exercise, "the burden [of strict scrutiny] is placed squarely on the Government." Gonzales, 546 U.S. at 429. RFRA, moreover, "contemplates a 'more focused' inquiry: It 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'-the particular claimant whose sincere exercise of religion is being substantially burdened." Bunve/1 v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,2779 (2014). The Court must therefore "loo[k] beyond broadly formulated interests" and '"scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants'- in other words, to look to the marginal interest in enforcing" the Executive Order against the Plaintiffs. /d. (quoting Gonzales, 546 U.S. at 431 ).
Defendants cannot meet their heavy burden. The government has not demonstrated, and cannot show, that a blanket prohibition against immigrant and nonimmigrant entry by Iranian nationals is, or furthers, a compelling governmental interest. While the Executive Order cites a threat of"terrorist attacks by foreign nationals admitted to the United States," there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran-or any of the other six countries specified in the Executive Order. And as noted above, Defendants fail to address, much less refute, that the existing system already adequately protects the United States against terrorist threats.
E. Administrative Procedure Act Plaintiffs are likely to prevail on the merits of their APA claims on two grounds. First, Defendants' actions to implement the Executive Order are contrary to the INA and its implementing regulations. See 5 U.S.C. § 706(2). Second, Defendants' actions have brought
27

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 41 of 227

about a fundamental shift in immigration regulations with no regard for the APA's procedural requirements. The Departments of State and Homeland Security implemented the radical change in policy dictated by the Executive Order literally overnight, with immediate effect and no advance notice, and with no opportunity to be heard, no written guidance, and in many cases no disclosure to the public or the affected parties.
1. Defendants' Actions Are Contrary to the INA and Implementing Regulations.
The Executive Order invokes the President's authority under§ 212(t) ofthe INA to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants" if he determines that such entry would be "detrimental to the interests of the United States." 8 U.S.C.
§ 1182(t); see Exec. Order § 3(c). But for two separate reasons, this provision cannot justify
Defendants' sweeping actions to impl~ment the Order. First, the President's power to suspend entry of classes of aliens under§ 212(t)- and
Defendants' ability to implement such a suspension- is limited by a separate, later-enacted INA provision that prohibits invidious discrimination in the issuance of immigrant visas. Under 8 U.S.C. § 1152(a)(l)(A), "no person shall ... 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." Thus, despite§ 212(t), Defendants cannot refuse to process immigrant-visa applications for all Iranian nationals, because doing so discriminates against such individuals in the issuance of immigrant visas. Contrary to§ 1152(a)(l )(A)'s categorical prohibition on such discrimination, Defendants have denied- and refused even to process- immigrant visas on the basis of applicants' nationality, birth, and residence (albeit as a pretext or proxy for excluding Muslims on the basis of religion). These actions are contrary to § 1152(a)(1)(A) and invalid.

28

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 42 of 227
Second, Defendants' actions to' implement the Executive Order effectively revoked formally adopted rules on visa processing and revocation. For example, the State Department has issued regulations governing the visa application process and the grounds on which a consular officer may deny a visa application. Those regulations require an individual determination of eligibility, based on the specifics of the law and on individualized facts and circumstances: "A visa can be refused only upon a ground specifically set out in the law or implementing regulations," and a consular officer's determination that they have a "reason to believe" that an alien is ineligible "shall be considered to require a determination upon facts and circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa." 22 C.F.R. § 40.6 (emphasis added).
These provisions also are found in the State Department's Foreign Affairs Manual. See 9 FAM 301.1-2 (a visa may only be refused on a ground specifically set out by statute or implementing regulation). The requirements ofthe regulations and the FAM track§ 222 ofthe INA, which describe the procedures for granting a visa, as well as§ 212, which provides categories of ineligibility for a visa (such as having engaged in narcotics trafficking). Specific regulations, adopted through notice-and-comment rulemaking, set forth categories of ineligibility, including polygamists, international sex traffickers, and former citizens who renounce citizenship to avoid taxation. See 22 C.F.R. part 40, subparts 8-K.
Regardless ofwhether § 212(f) permits Defendants to bar entry, the State Department acted contrary to its own regulations and the FAM by imposing a categorical suspension on the issuance of visas to nationals of Iran and the other specified countries. The State Department categorically deemed individuals ineligible on the basis of their nationality without affording each individual visa applicant "a determination based upon facts or circumstances." 22 C.F.R. § 40.6. And the Department failed to co~duct the notice-and-comment proceedings required to
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reverse a rule adopted by notice and comment, nor even provided a reasoned explanation of this sweeping policy change, as the APA requires. See Nat'/ Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227,231-32 (D.C. Cir. 1992); CBS Corp. v. FCC, 785 F.3d 699, 708

(D.C. Cir. 2015) (agency must "provide a reasoned analysis indicating that prior policies and

standards are being deliberately changed, not casually ignored").

The same is true of the rules governing revocation of visas or visa applications. Under the State Department Foreign Affairs Manual, a revocation "must be based on an actual finding

that the alien is ineligible for the visa," and cannot be revoked "based on a suspected

ineligibility, or based on derogatory infonnation that is insufficient to support an ineligibility

finding.'' 9 FAM 403.11-3(8). The Manual further states that revocation authority should not be used "arbitrarily," and that each individual, to the extent "practicable," must be given notice and

"the opportunity to show why the visa should not be revoked." 9 FAM 403.11-4(A). Similarly,

under 8 C.F.R. § 205.2, the U.S. Citizenship and Immigration Service may revoke approval of applications for immigrant visas only after notice has been given and the individual has the

"opportunity to offer evidence in support of the petition . .. and in opposition to the grounds

alleged for revocation," and the right to appeal a revocation.

The Departments of State and Homeland Security jettisoned these rules, systemically and

categorically revoking tens of thousands of visas and visa applications. This systemic and

categorical revocation afforded none of the affected individuals the process to which they were

due under well-established agency rules, regulations, policies, and practices.

2.

Defendants' Actions Disregard APA Procedural Requirements.

Under the APA, an agency may not, either explicitly or implicitly, alter existing rules

adopted through notice-and-comment without undertaking a new notice-and-comment process.

"When an agency promulgates a legislative regulation by notice and comment directly affecting

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the conduct of both agency personnel and members of the public, whose meaning the agency announces as clear and definitive to the public . .. , it may not subsequently repudiate that announced meaning and substitute for it a totally different meaning without proceeding through the notice and comment rulemaking normally required for amendments ofa rule." Nat'/ Family Planning, 979 F.2d at 231.
Even for rules adopted without notice-and-comment proceedings, the agency is not free to change its rules on a whim; the agency must provide a reasoned explanation for its changes. See CBS Corp., 785 F.3d at 708; Motor Vehicles Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) ("[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance."). Defendants ignored these requirements. In implementing the Executive Order, Defendants cast aside established regulations and practices, imposed a categorical ban on refugee admissions, and applied new, sweeping rules for visa denials and revocations, all without any of the formal procedural steps that the APA requires.
Worse, government officials failed to make even the barest effort to provide clarity, consistency, or transparency as to these changes and acted with reckless disregard for the rights and interests of tens of thousands of Iranian visa holders as well as refugees and asylum seekers. The Executive Branch took immediate action with no provision even to address visa holders already in the United States or in transit to U.S. airports. They provided no guidance or mechanisms in place to prevent arbitrary determinations as to individuals under the case-by-case review provision. These actions were procedurally invalid under the APA.
II. Plaintiffs Will Suffer Immediate, Irreparable Harm Absent Preliminary Relief
Without this Court's intervention, Plaintiffs will suffer immediate and irreparable harm as a result of the enforcement of the Executive Order. Where, as here, plaintiffs allege deprivations
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of constitutional rights, irreparable harm for purposes of a preliminary injunction is presumed. Statharos v. N.Y. Taxi & Limousine Comm 'n, 198 F.3d 317, 322-23 (2d Cir. 1999). The "loss of constitutional freedoms, 'for even minimal periods of time, unquestionably constitutes irreparable injury."' Mills v. District ofColumbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting£/rodv. Burns, 427 U.S. 347,373 (1976) (plurality)).
Moreover, Plaintiffs face actual irreparable harm. The organizational Plaintiffs have already been forced to divert significal}t portions of their limited resources to respond to the Executive Order. They have had to indefinitely suspend all their regular activities- including providing social and legal services, assisting new immigrants to the United States, and legislative and political outreach-while they sort through the implications of the Executive Order.
The Executive Order also threatens irreparable hann to the individual Plaintiffs: • Plaintiffs Ali Asaei and John Doe #1 will likely be unable to extend or apply for a new
work authorization when their current status expires. They will likely be forced to quit their jobs and leave the United States permanently upon expiration of their status, or earlier. Ex. 5, Decl. of Ali Asaei, 16; Ex. 15, Decl. of John Doe #1 , 17. • Plaintiff Jane Doe #4, an Iranian citizen who was granted asylum in the United States in 2016, is unable .to travel outside the United States for fear of being denied entry on her return. If the Executive Order remains in force, Plaintiff Jane Doe #4 will be unable to travel internationally and will be separated from her family indefinitely. Ex. II, Decl. of Jane Doe #4 ,, 3-4.

• Plaintiff John Doe #3 will be unable to begin his fellowship researching diabetes effects on the heart at a top rated hospital in Boston. Ex. 17, DecI. ofJohn Doe #3 , , 9, 14, 17.

• The family of John Doe #4, including his mother (Jane Doe #7) and sisters (Jane Does #5

and 6), will be stranded in Turkey indefinitely with limited economic means, and unable

to return to Iran due to fears of political persecution. Ex. 18, Decl. of John Doe #4 , 6;

Ex. 12, Decl.
Doe#7~ 6.

of Jane

Doe

#5,

6;

Ex.

13,

Decl.

of Jane

Doe

#6

~

6;

Ex.

14,

Decl.

of Jane

• John Doe #5 will have to choose between being reunited with his wife and infant son, or
keeping his current job as a post-doctoral fellow with the SUNY Research Foundation.
Ex. 19, Decl. of John Doe #5 , 12.

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• Jane Doe #I will be unable to get married to her visa-holding fiance. Ex. 8, Decl. of Jane Doe #1 ~, 15-16.
• John Doe #2 will not be able to welcome his sister to the United States because her green card will be denied. Ex. 16, Decl. of John Doe #2 ~ 16.
• Jane Doe #2's sister will also b~ unable to enter the United States, nor will Jane Doe #3's brother. Ex. 9, Decl. of Jane Doe #2, 14; Ex. 10, Decl. of Jane Doe #3 ~~ 13-14.
• Plaintiff John Doe #7 and his partner John Doe #8 will continue living in exile in a small town in Turkey, fearing violence on the basis of their sexual orientation, and where they are unable to seek employment. In addition, John Doe #8's health will continue to deteriorate without medical intervention. Ex. 21, Decl. of John Doe #7 ~~ 5-7; Ex. 22, Decl. of John Doe #8 ~5-7.
III. The Balance of the Equities and the Public Interest Support Preliminary Relief The balance of equities and the public interest also support preliminary relief. "These
[two] factors merge when the Government is the opposing party." Nken v. Holder, 556 U.S. 418,
435 (2009). The government and the public have no legitimate interest in enforcing unconstitutional
laws or actions. See United States v. U.S. Coin & Currency, 401 U.S. 715,726 (1971); KH Outdoor, LLC v. City ofTrussvi/le, 458 F.3d 1261, 1272 (11th Cir. 2006). Any purported
"national security" justification for enforcing the Executive Order is a blatant pretext for invidious discrimination and provides no basis for categorically excluding the individual Plaintiffs and others from the United States on the basis of their religion or national origin (as a proxy for religion). The only reason the Executive Order applies to nationals of Iran at all is because the Secretary of State determined, based on the Iranian government's international
actions, that the government of Iran "repeatedly provided support for acts of international terrorism." 8 U.S.C. § 1187(a)(l2). The Executive Order is not based on any evidence, much
less any reasoned determination by the Department of Homeland Security or otherwise, that Iranian nationals should be deemed pr~sumptive terrorists.
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Indeed, the Executive Order is contrary to longstanding U.S. policy and far more likely to harm than to advance interests of the United States. For decades, this nation has sought to promote democracy and religious freedom and to sanction human rights abuses in Iran. Lawmakers from both sides of the aisle have consistently supported political opposition efforts in Iran. See Letter from 23 former U.S. officials to President-Elect Donald Trump (Jan. 9, 2017) (stating that the safety of2,500 Iranian opposition members stranded in Iraq, whom the U.S. pledged to protect, "remains a moral obligation for the United States");5 Press release, Senator Marco Rubio, Statement on Iran's Presidential Election (June 14, 2013), ("I intend to ... find ways to continue to highlight the Iranian regime's treatment of its own people and ... work toward the day when the Iranian people will have a real opportunity to shape their country's future."). Consistent with these principles, the United States has recognized that it is in the national interest to provide shelter and legal protection to individuals fleeing persecution from the Iranian government, including in particular those who have been victims of"systematic, ongoing, and egregious violations of religious freedom." U.S. Comm'n on lnt'l Religious Freedom, 2016 Annual Report 45 (Apr. 2016). Public opinion of the United States is higher in Iran than in any other country in the Middle East (other than Israel). C. Thornton, The Iran We Don't See: A Tour ofthe Count1y Where People Love Americans, The Atlantic (June 6, 20 12).
The U.S. Commission on International Religious Freedom has made clear that U.S. efforts with respect to Iran are about Iranian government policy and not the people of Iran:
5 This bipartisan group includes foriner House Speaker Newt Gingrich, former Bush Administration Secretary of Homeland Security Tom Ridge, and Former New Mexico Governor and U.S. Ambassador to the United Nations Bill Richardson. Their letter to then-PresidentElect Trump emphasized the importance ofhelping the people of Iran, noting that "the core of our approach is to side with 80 million Iranian people and their desire .. . for freedom and popular sovereignty based on democratic principles."
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"[T]he United States continues to keep in place and enforce sanctions for Iran's human rights violations, its support for terrorism, and its ballistic missile program. According to the State Department, these sanctions are intended to target the Iranian government, not the people of Iran." U.S. Comm'n on Int'l Religious Freedom, 2016 Annual Report 48 (Apr. 2016).6 The State Department's Human Rights Report on Iran criticizes the Iranian government because it "severely restricted freedom of speech·and of the press and used the law to intimidate or prosecute persons who directly criticized the government or raised human rights problems." U.S. Dep't of State, Iran 2015 Human Rights Report 15, in Country Report on Human Rights Practices for 2015. Senator John McCain stated U.S. policy clearly in 2009: " The president and his administration should be at the forefront, calling on the Iranian regime to annul the fraudulent election, to restore the people's inalienable rights, and to allow peaceful protesters to voice their opinions... . [B]y standing with the Iranian people as they pursue their legitimate rights we will demonstrate to them- and to the world- that American is more than its might." Sen. John McCain, Speak Out for Iran and Its Democracy, Arizona Republic, Feb. 5, 2017.
In the face of all this, and without any basis, the Executive Order effectively accuses all lranians- Muslim or non-Muslim, religious or secular-of presumptively subscribing to " radical Islam" and harboring terrorist intentions against the United States. This baseless stereotyping is an affront to the Iranian American community, who represent and foster those elements of Iranian society that are most likely to cherish the values of freedom and tolerance that this country has long represented. Slamming the door on all Iranian individuals, with no regard to
6 The Commission also made clear that the importance of protecting the rights of Iranian citizens: The U.S. government should "continue to support an annual UN General Assembly resolution condemning severe violations of human rights, including freedom of religion or belief, in Iran and calling for officials responsible for such violations to be held accountable." /d. at 49.
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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 49 of 227
their personal circumstances, plays into the hands of hard-liners in the Iranian government, who have long used the United States- "the Great Satan"- as a foil to justify their repressive policies. The Executive Order leaves Iranians who stand up to the regime out in the cold, and will likely encourage anti-Americanism in the region. None ofthose results serves the American public's interest or our national security.
On the other hand, Plaintiffs have a vital, pressing interest in securing preliminary relief and in enjoining enforcement of a policy that has thrown their lives into disarray and infringed on their constitutional rights. "The public interest and the balance of the equities favor preventing the violation of a party's constitutional rights." Arizona Dream Act Coalition v.
Brewer, 818 F.3d 901,920 (9th Cir. 2015). There are no other adequate remedies.

36

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 50 of 227

CONCLUSION For the foregoing reasons, Plaintiffs' motion for a preliminary injunction should be granted. A proposed order is attached.

Dated: February 8, 2017

Cyrus Mehri (D.C. Bar# 420970)

JoannaK. Wasik(D.C. Bar# 1027916)*

Amelia Friedman (D.C. Bar# 1033583)*

MEHRI & SKALET, PLLC

.

1250 Connecticut Ave., NW

Suite 300

Washington, DC 20036

(202) 822-51 00

(202) 822-4997 (fax)

cmehri@findj ustice.com

U.W. Clemon"'* MEHRI & SKALET, PLLC 5202 Mountain Ridge Parkway Birmingham, AL 35222 (205) 837-2898 (205) 798-2577 (fax) jclemon@findjustice.com

Kristen Clarke (D.C. Bar# 973885) Jon Greenbaum (D.C. Bar# 489887) LAWYERS' COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org

lly submitted,
11~
Jo A. Freedman (D.C. Bar# 453075) David P. Gersch (D.C. Bar# 367469) R. Stanton Jones (D.C. Bar# 987088) Nancy L. Perkins (D.C. Bar# 421574) Allison B. Rumsey (D.C. Bar# 450475)* Ronald A. Schechter (D.C. Bar# 2450 19) Robert N. Weiner (D.C. Bar# 298133) Samuel M. Witten (D.C. Bar# 378008)* Lindsey D. Carson (D.C. Bar# 992620)* Sally L. Pei (D.C. Bar# 1030194)* Sonia Tabriz (D.C. Bar# 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell** ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Counselfor Plaintiffs
*D.D.C. admission pending **Pro hac vice motion forthcoming

37

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 51 of 227
•

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 52 of 227
EXHIBIT 1
Oocum~ntt

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 53 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.·- - -

DECLARATION OF THE PARS EQUALITY CENTER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section I746, I, Bita Daryabari hereby declare and state as follows: I. I am over the age of eighteen years. I have personal knowledge of the facts set forth herein, and am competent to testify thereto. 2. I am the Founder and Executive Director of The Pars Equality Center (Pars). In this capacity, I serve as the leader of all of Pars' departments. I also facilitate Pars' work with other like-minded organizations, engage in fundraising efforts on behalf of the organization, and work with the Board of Directors. 3. The Pars Equality Center is a 50I(c)(3) non-profit dedicated to helping all members of the lranian·American community and other Persian-speaking countries realize their full potential as informed, self-reliant, and responsible members of American society. Pars believes that learning and teaching the rights and responsibilities of citizenship in a democracy as well as the rules and rewards of entrepeneurship are the necessary

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 54 of 227

ingredients for our success as a community. Pars achieves its mission primarily by providing extensive social and legal services out of community centers. The organization's Persian-speaking staff advocates for families and individuals in need with a strong focus on refugees, asylees, and those newcomers living in poverty. The Board of Directors of Pars are all of Iranian descent. Pars is based in California. 4. While its focus is on the Iranian-American community, Pars does not close its doors to anyone seeking its services. Especially in its immigration services, Pars serves clients from various backgrounds and nationalities. In 2016, Pars provided 20,713 units of service1 across all of its locations, with the majority of clients of Iranian descent. 5. Among other things, Pars provides mentorship and career development for IranianAmericans. For example, Pars hosts a Silicon Valley career development techniques and best practices workshop, which covers resume writing, successful interviewing, information about the culture of the workforce in Silicon Valley, and how employees can make themselves an instant asset to potential employers. Pars also hosts a "Generation +" initiative that provides the younger generation of Iranians, both American-born and immigrants, with career mentors, peer mentors and career opportunities. Pars selects a broad array of mentors from the private, public, and art sectors, provides formal mentorship that connects younger Iranians with mentors that best fit that individual's needs, and organizes social events to allow members of the community to bring together the community and facilitate career connections. Through its work with Generation+, Pars acts as a catalyst for social, cultural and economic integration of Iranians speaking communities to achieve their highest potential.

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C. ase 1:17-cv-00255-TSC Do- .cu~ment 9 Filed 02/08/17 Page 55 of 227

6. Pars provides various other social services to Iranian Americans and Persian speakers of all ages. Pars provides, among other things, English as a Second Language (ESL), citizenship, and resume writing/interview skills classes; computer training and access to employment resources including job fairs; assistance navigating the social and medical systems; and other services to improve the quality of the family's life in our community. Through the Kordestani Family Fund, Pars also invests in the education of Iranian American youth by providing a grant each year to a student of Iranian descent graduating from high school in California with specific plans to continue their education in a College or University in California. PARS also has a social club for Persian speaking immigrants over the age of 55 which includes interactive programs, tours and picnics to provide an uplifting and inspiring environment that these individuals can call home away from home.
7. The legal services provided by PARS are intended to provide community members the resources to become productive citizens by educating and advocating ·on behalf of individuals in the community. The legal staff members at PARS are either licensed attorneys or accredited Board of Immigration Appeals representatives, and they guide individuals through the immigration process and provide extensive legal services, including: citizenship, green card renewals, domestic violence based petitions, family relative petitions, travel documents, issues arising in the refugee context, and counselor processing.
8. PARS's legal team also works on a national level to offer advice, analysis and legal research in other areas, including litigation, employment, family and sanction law issues. To this end, PARS works with other organizations, such as the Iranian American Bar
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 56 of 227
Association and the Public Affairs Alliance of Iranian Americans, across the United States to educate the community about relevant legal issues and advocate on behalf of Iranian Americans in the U.S. 9. I have a long-standing passion for increasing knowledge of my native Iranian culture, as well as improving the lives of people from Iran and beyond. I founded the Pars Equality Center in 2010 to be a community-based social service and legal services foundation and have served as its Executive Director since that time. Prior to my work at Pars, I received my Master's degree at Golden Gate University in California, where I was later awarded the Alumni ofthe Year award in 2008. Upon graduation, Ijoined GammaLink, Inc., one of the early pioneers in the field of telecommunications. I later moved to MCI Communications where, more than once, I received distinguished medal awards and recognition for my work. I have also been recognized for my various philanthropic efforts, and have received the Ellis Island Medal of Honor (20 12); the United Nations Appreciation Award for Outstanding Leadership, Commitment and Support of the UN, and Achieving the UN Millenium Development Goals (2011 ); and the Public Affairs Alliance of Iranian Americans Philanthropist of the Year Award (20 I0).
Harm to PARS caused by the January 27, 2017 Executive Order
10. Pars is extremely concerned about the EO because it has already had, and will continue to have, a highly negative impact on both the community that we serve as well as the mission and purpose of our organization. For the reasons discussed below, enforcement of the EO will harm Pars' mission in multiple ways and has already forced Pars to scramble to address its effect, thus causing Pars to divert valuable resources away from its usual activities. 4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 57 of 227
II. The goal of the legal services that Pars typically provides - to effectively use the immigration laws to advocate on behalf of immigrants, including immigrants from Iran, and to guide individuals through immigration processes - has also been crippled by the EO. While Pars attorneys seek to provide concrete answers, at present the EO's vagueness and ambiguity prevents them from informing those who seek their services what to expect with their or their family members' pending visa and green card applications, whether they should submit future petitions, or whether they will be able to travel outside of the United States - for work or pleasure - in the future. The assistance that Pars typically provides to individuals with their visa applications or green card petitions is at best severely delayed; at worst, it is at a complete standstill.
12. The EO will have a severely negative impact on the mission of our organization. Pars seeks to facilitate the social, cultural and economic integration of Iranians to achieve their highest potential while also staying connected to their Iranian heritage. However, the EO falsely singles out Iranians in the United States and those seeking to enter as a terrorist threat. Such a negative label on the Iranian-American community has already sown fear and anxiety in the community we serve. The stigma and discrimination that is caused by the Ban will exacerbate the challenges that immigrant groups, especially immigrants from primarily Muslim countries like Iran, already face in the United States.
13. Pars also seeks to elevate Iranians and Persian speakers to achieve their highest career potential in the United States. However, the EO blocks the entry of, or forces the departure of, many Iranians who would otherwise have contributed to the vibrant and creative economy of the United States. For example, based on my leadership of and experience with Pars' mentorship and career development, Generation+, and educational
5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 58 of 227
programming, I believe it is likely that the EO will affect the decisions of employers, who may prefer not to hire or sponsor Iranian visa holders, or even legal permanent residents and dual citizens. In addition, the EO will cause individuals with high levels of educational attainment - Master's and PhD degree holders who are applying for H 1B, or other business or student visas - to be denied visas or for their visas not to be renewed. Some of these educated individuals may also choose to leave the United States, even if it means leaving behind promising careers or degree programs, in order to be reunited with family who is not able to enter the United States. 14. The psychological and emotional toll of the EO has already come into stark relief in conversations between Pars staff and Iranian Americans. Entire families are experiencing profound disruption, given that the children of visa holders may be well-integrated into American life and culture, yet the EO may soon force their parents to leave the United States. In short, while Pars fights for families to establish themselves in their communities and for individuals to achieve their greatest career potential, the EO is likely to cause family separation and a brain drain from the United States. 15. The purposes of Pars' citizenship classes will also be undermined by the EO. Pars teaches Iranian immigrants about the U.S. democratic system, and the rights and privileges that it bestows. The goal is for those who learn at Pars to become well-integrated, self-sufficient members of their communities. However, after the EO, Pars has been unable to answer basic questions about what the U.S. government has in store for those entering the country from Iran and those currently in the United States on visas. The EO has made it difficult, if not impossible, for many individuals to plan their future lives in the United States. It has all but put hopes of citizenship and permanent status out of reach for those
6

I -·1

. Case-1:17-cv-0025..5-T.SC Documen:t 9 Filed 02/08/17 Page 59 of 227

who do not have it, including refugee applicants and asylum applicants. And for dual citizens and permanent residents both, the EO means that they may not be able to have their family members join them in the United States as planned. The vast uncertainty, confusion, and deep fear caused by the EO has already manifested itself great harm to the communities that Pars serves as well as the organization's mission. That harm will only continue to deepen as the EO continues to be enforced. 16. Our organization has suffered economic harm directly as a result of the EO. Since the signing of the EO, our legal services staff has received twice the typical volume of calls, emails, in~person questions and other inquiries. Individuals of all legal statuses - dual citizens, green card holders, visa holders, those seeking protected status (VAWA, U Visa, I0751 with waiver), refugees and refugee applicants, and asylees and asyulum applicants, and others - have called with fearful questions about themselves or their loved ones. Instead of our usual legal services, we have been focused almost completely on addressing unanswerable queries about the EO. I7. Our legal services team is inundated with constant telephone calls, emails, and messages. In the week following the signature of the EO, the Senior Director of the Legal Department alone has been forced to devote dozens of hours of her time solely to dealing with EO-related issues. In fact, the work of answering calls and answering the queries of individuals has spilled over to our social services team, which would typically make a referral to the legal services team, because legal services is so overwhelmed. 18. The individuals who have contacted Pars as a result of the EO include asylum applicants from Iran outside the United States who are unable to enter the United States, as well as
7

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 60 of 227
those Iranians who have been granted refugee status in the United States but whose families are still abroad and now unable to join them. 19. Our resources have also been diverted from our typical programming. Instead of preparing and giving panels and presentations on topics of education, citizenship, and career, we have been forced to present almost exclusively on the EO and its impact on the Iranian American community. Since the EO was signed, we have spent significant time organizing with other groups and entering into coalitions to share information and be able to adequately inform the community about its effects. 20. As an example, one attorney at Pars has been unable to work on any of the cases to which she was assigned before the EO was signed. Instead, she spends all of her working time researching updates on the EO and making presentations on its impact. For one of her presentations, she had to seek out the assistance of a psychologist who would counsel distraught individuals after her presentation. 21 . Another attorney has had to devote significant time completing research on the EO and basic constitutional analysis so that she could respond to queries received by Pars, instead of performing her regular job functions. Other staff members, particularly within Pars' legal services branch, have spent their time educating themselves about the EO and regularly posting online about it for the benefit of the impacted community. 22. In summary, the EO has caused profound psychological and emotional harms to the Iranian-American community. It has created fear and anxiety and separated and unmoored families. It has also put into jeopardy the economic security of these communities and is sure to cause a brain drain from the United States as many Iranian immigrants, refugees and Iranian Americans are forced to, or choose to, leave the country
8

•• •• • Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 61 of 227
in search of more stable employment, reunification with their families, or both. By extension, the EO will also weaken the economic contribution ofthe Iranian-American community to the United States. The EO has crippled core aspects of Pars' mission and wreaked havoc on the organization's ability to continue with its usual programming, social, educational, and legal services.

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I. Bitya Daryabari, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 63 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 64 of 227
EXHIBIT2
Document I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 65 of 227

THE UNITED STATES DISTRICf COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President ofthe United States, )

~~

)

)

)

Defendants.

)

Civil Action No.·- - -

DECLARATION OF IRANIAN AMERICAN BAR ASSOCIATION IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Babak Yousefzadeh, hereby declare and state as follows:
l. I am over the age ofeighteen years. I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others, and am competent to testify thereto.
2. My name is Babak Yousefzadeh. I am the President ofthe Iranian American Bar Association (IABA). I have personal knowledge of the facts set forth in this declaration, or I believe them to be true based on my experience at IABA, information provided to me by others, or review of information and documents available to me in the course and scope of my position with the IABA. If asked to do so, I could testify truthfully about the matters contained in this declaration.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 66 of 227
3. The IABA is a non-profit independent and apolitical professional association operating under section 501 (c)(6) of the Internal Revenue Code. It seeks to educate the Iranian American community in the United States about legal issues of interest, advance legal rights of the community, and ensure that government officials and the public at large are fully and accurately informed on legal matters of concern to the Iranian American community. The IABA also seeks to foster and promote the achievements of Iranian American lawyers and other legal professionals.
4. Founded in 2000 with a single Washington, DC chapter and four members, the IABA now has additional chapters in Dallas, Los Angeles, New York, Northern California, Orange County, Phoenix, and San Diego. Currently, we have over 1500 members, including attorneys, judges and law students, and consist of the only national network of Iranian American lawyers in the U.S. The IABA provides a formal mentorship program to Jaw students and new lawyers, jobs board, and continuing education programs including a national conference. The affiliated !ABA Foundation has granted over two dozen scholarships to law students since it was established in 2013.
5. The members of the IABA Board of Directors are distinguished members ofthe Iranian American legal community. There is one board member for each local chapter, multiple at large members (depending on annual needs) and one student representative.
6. I am currently in my third term as President, and I am also a member of the Board of Directors, representing the Northern California Chapter. I have been a member of !ABA for eight years. I am also a Partner with the national law firm Sheppard, Mullin, Richter & Hampton, LLP, in their labor and employment practice group.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 67 of 227
7. In addition to my role at IABA, I have a personal stake in ensuring the United States applies its immigration practices fairly to Iranian nationals and provides asylum to those legitimately fleeing political persecution. My family had to leave Iran for Switzerland in 1984 when I was only seven years old, sought asylum in Germany and ultimately sought and obtained political asylum in the United States after a two-year process.
8. My family was forced to leave Iran because of my father's opposition to the then-newlyformed government of the Islamic Republic of Iran. My father opposed the Shah's regime and supported democratic change. However, based on what I have learned, in the unrest following the revolution, there was a suppression of those who sought a democratically elected civil government and additional liberties, including by means of imprisonment and extra judicial executions. At the time, my father was politically active. His political circle was under a severe threat, and people he knew and associated with had been imprisoned and executed. Even though they opposed the regime and did not want to leave their country, my parents decided the risk of staying was too great. My mother, my 13year sister and I left immediately, and my father was only able to follow with a great deal of difficulty several months later. If we were not able to leave the country, I fear my father would have perished.
9. I came to the United States in 1986 and was a permanent resident until 200 I, when l became a naturalized citizen. As a child and young adult, I did not perceive much difference between being a permanent resident and a citizen - as far as I was concerned my family and I were like other Americans.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 68 of 227
I0. My story is not unique. In meeting and talking with Iranians of my generation who now live in the United States, l found that a lot of us came here by seeking political asylum, and often going through countries like Germany that opened their borders to us.
IABA's interest in and concern about enforcement of the January 27, 2017 Executive Order
II. The IABA is vitally interested in and concerned about the January 27,2017, Executive Order, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (the "EO") and the associated State Department Memorandum of the same date (" DOS Memorandum"). This EO imposes a blanket bar to immigrants and other individuals traveling to the United States from majority-Muslim countries, including Iran, who have followed valid procedures to obtain lawful visas or other authorization. It has prevented numerous Iranian nationals wishing to relocate to or visit the United States for work, travel or study to do so. It has made it difficult or in some cases impossible for even permanent residents or current visa holders already in the United States to freely travel abroad and return to the U.S.
12. In addition to the EO itself, associated actions ofthe U.S. State Department and the Department of Homeland Security Office ofCustoms and Border Patrol ("CPB") have harmed and unfairly restricted Iranian Americans. The secret DOS Memorandum implementing the EO "provisionally revokes" any current immigrant or nonimmigrant visa held by any national of Iran or the other countries covered by the EO. According to press reports and information surfaced through legal challenges to the EO, the State Department secretly revoked these documents without providing any notice to affected individuals. The U.S. government has communicated directly with international airlines
4
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Case 1:17-cv-00255-TSC

Document 9

Filed 02/08/17 .

Page 69 of 227 .

.

instructing them not to board passengers holding these visas without communicating with travelers or the public. As a result, any current visa holder residing in the United States cannot travel outside the U.S. because they no longer have a lawful authorization toreenter the country. 13. The IABA is vitally interested in and concerned about the EO because it subjects our members, and their families, friends and fellow members of the Iranian community in the United States and aboard to direct and indirect restrictions on their ability to work, travel, study and live in the United States. 14. The EO will adversely affect our members as well as mission and purpose of our organization. It has already forced IABA to divert substantial resources to combating the EO's pernicious effects. I5. In this statement I first explain why enforcement of the EO against the Iranian community and IABA 's members is improper and arbitrary. I provide a summary of the hundreds of reports we have taken from individuals denied entry to the United States, subjected to additional delay or otherwise impacted by the EO. I then explain the economic harm that enforcement of the EO has caused, and would cause, to our organization in particular.
Impact of the EO on the Iranian American Community
16. Based on the many individuals who have contacted the IABA since January 27, it is clear that the EO is sowing fear and confusion in the Iranian American community. It has unfairly singled out Iranian Americans, despite their deep ties to this country. It has separated families and limited the ability of Iranian Americans living in the United States to visit or help family members in Iran. It has prevented U.S. citizens who are married to 5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 70 of 227
Iranian nationals from maintaining a normal family life together. It has left people who sold their homes and possessions in preparation to immigrate in limbo. 17. The EO treats the Iranian-American community, estimated to approach I million people, that has many U.S. citizens and lawful permanent residents who have made significant contributions to the United States through their work, study and participation in community life for decades, as less than fully American. Iranian Americans have contributed to many aspects of American society including public and military service. Without any basis or justification, the EO paints all with the same brush. It effectively categorizes everyone of Iranian descent as a potential terrorist and therefore inherently dangerous. But according to a study conducted by the CATO Institute that reviewed data from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran -- or any of the other six countries specified in the Executive Order. 18. I have heard the numerous statements from President Trump about wanting to exclude Muslims from entry into the United States. I see that he has done so by naming everyone from seven majority Muslim countries, regardless of the diversity of people and circumstances of those people. This is inconsistent with U.S.' stated support for decades for Iranian dissidents and Iranian religious minorities and reflects in my mind that the Executive Order was not meant to address a threat from Iranian citizens but simply to go after Muslims or perceived Muslims as a group. 19. News reports and the reports from many individuals who have contacted us since the EO was signed make clear how the arbitrary and inconsistent actions of the CBP's enforcement have harmed Iranians. News accounts from Iranians with otherwise valid
6

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 71 of 227
immigrant and nonimmigrant visas or green cards include being denied entry and forced to board flights out of the country, being detained for extremely long periods of time, and attempting to coerce permanent residents into signing away green cards.1 20. We have received similar reports through our direct contacts with Iranians. Some have sold their possessions and made all their preparations to relocate, only to languish at arrival terminals or be summarily returned to Iran. Families are left wondering what happened to relatives who never arrived, or are forced to separate. Families have been separated and Iranian Americans living in the United States may now be unable to visit or help family members in Iran. We have several accounts of U.S. citizens who are married to Iranian nationals now unable to maintain a normal family life together. Individuals who had legal permission to work or study in the United States, and who happened to be out of the country for work, conferences, family visits or other reasons, found they were unable to return to their homes, classes and jobs. 21. Since January 27, our chapters have been on the front lines at airports and responding to emails, calls and social media postings from Iranian Americans and Iranian nationals affected by the EO. We have invited individuals to file reports with us, and have received at least 350 reports, although not all are complete. Of those, over 150 reports involve individuals denied entry to the United States, including persons who were not permitted to board flights at all despite having valid visas or other authorization to enter the United States •• and persons who arrived at U.S. airports and were turned back and put on flights
1Natasha Bertrand, Lawsuit: Dozens of Immigrants Tryng to Enter the U.S. Coerced Into Giving Up Visas and Green iOCmardmrdesirgAaratfttLieoArnXT-,rbLuaomns·ptArTanvrgaeevlle·ebsl aBDnaa-ni2l,y0B1Nu7es-iwln:seBs(srJeaInnn.dsia2d9Ge,ra2(z0Fz1eab7r.)a,3na,dv2aC0il1ya7nb)tlh,eiaaavtWaihlaatstbhplie:c//kawot w,hTtwthp.od:u/a/siwlaywnndwesw.bPsur.ocsoitenmsets/gsTiernunsmeirdpae'lsr-.Icmommi/gtrruamtiopnnews/20170129/thousands-protest-tru mps-immigration-order-at-lax: Lives Rewritten With the Stroke of a Pen, New York Times (Jan. 29, 2017), available at https://www.nyti mes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html? r=O.
7

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Case 1:17-cv-00255-TSC Doc. ument 9 Filed 02/08/17 Page 72 of 227

'

out of the country. Almost 50 others who were green card holders or had visas reported delays, more intrusive questioning or other hurdles upon arrival. Several dual citizens were denied entry and at least I0 lawful permanent residents holding green cards reported being refused entry into the United States altogether. 22. In one instance, an IABA staff member made contact with an Iranian family who reported they had tled to Turkey to escape political persecution in Iran. The family members had been accepted as refugees under the U.S. Government' s Refugee Assistance Program and were awaiting safe passage to the United States. As a result of the EO, the family had been stranded in Turkey without proper accommodation. Within a few hours, the IABA staff member used IABA funds to pay for their stay at an Istanbul hotel and arranged for them to travel by bus to Istanbul. She also purchased them a plane ticket to the United States after a United States federal court temporarily restrained enforcement of the EO.
23. I have also received reports of individuals directly impacted by the State Department's secret order revoking visas and instructing airlines not to board any Iranian visa holders on flights to the United States. I received an email from an individual who, at the time of the call, had a group of 1 I0 visa holders in Iran who were not being allowed to board planes. We have reports that the airlines have denied boarding because they believed that CPB will tum the passengers back on arrival at U.S. airports and that this will subject the airlines to financial penalties. We also have reports that individuals provided the court orders to the airlines that should permit them to travel to the United States and that they were still told they are not permitted to travel because of the instructions of the U.S. government.
8

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 73 of 227
Harm to IABA
24. The EO will have a severely negative impact on the mission of our organization. As an organization that supports the rule of law and whose members are practicing attorneys and judges, the lABA is particularly distressed about reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who properly followed all procedures necessary to obtain valid permission to enter the United States face arbitrary, unjust and discriminatory restrictions on their rights.
25 . Further, because we are an association of lawyers specifically, we have dropped everything to focus on providing legal assistance and support to the Iranian American community and Iranian nationals. The EO's vagueness and ambiguity frustrates these efforts and prevents our attorneys from informing those who seek their services what to expect with their or their family members' travel plans and pending visa and green card applications. The EO and the associated actions of the State Department and CBP have created incredible chaos and many potential legal challenges as well as the need to answer hundreds of inquiries about whether individuals can legally travel to or outside the United States. This has completely overwhelmed our limited resources.
26. In early January, our organization set its goals - such as improving our infrastructure (including our website), updating our bylaws, increasing our social media presence and improving our services for members. We had specific plans to increase our membership
9
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'

and engage in fundraising. Just a couple of weeks later we find that all of our resources have been diverted to combat the EO and all of our plans are on hold. 27. I have personally devoted 6-10 hours a day since the chaos at the airports started on the morning of January 28 just to our response to the EO. I am personally responding to the calls and emails of people impacted by the EO and trying to coordinate responses. Since this is a voluntary endeavor it means I cannot devote normal attention to my job or other commitments. I am coordinating our response across multiple cities, including with our members who are at airports. I am coordinating with organizations like the American Civil Liberties Union, the American Immigration Law Association, the National South Asian Bar Association, the Asian Law Caucus, and other bar associations. I am also communicating with our chapters who are impacted, and dealing with significant media inquiries. 28. Our entire Board and many of our members are also devoting significant time on a voluntary basis to trying to reach people and represent them, trying to get individuals released, answering questions from travelers and their loved ones, and trying to follow up on reports of people being transferred. We are doing legal research on cases and responding to individuals outside the US. Our organization has also devoted significant resources to drafting materials to inform the community, including FAQs, and developing forms and databases to track people who are impacted. Local chapters have been spending time posting information on social media, particularly Facebook, and handling responses. Due the vague language in the EO and the chaos that followed , it has been extremely challenging to provide appropriate counseling and advice to individuals in need.
10

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29. We are spending money to update our website in order to get infonnation out, and have had to defer our plans to conduct fundraising in January.
30. At our chapters, at least half of the members of our local Boards are dedicating multiple hours every day to responding to the EO. The seven members of our Board who represent local chapters are all currently working on this issue, putting in significant time both on the national level and in local coordination. The remaining other five Board representatives are all helping in some capacity to support this work.
31. At this time, we do not expect this pressure to lift and we do not know when we can
return to the regular work of our association and our normal services we provide to our members.
II

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 76 of 227 I, Babak Yousefzadeh, declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge. Executed this 7th day of February, 2017, in San Francisco, California.
12

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I_ - ~-= -- ---- .- ·_-_ - --- • -- =--- - - -- - ----- - - .:.-

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 78 of 227
EXHIBIT3
Oo!.·umctlll

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 79 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.·- - -

DECLARATIONOF THE NATIONAL IRANIAN AMERICAN COUNCIL IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Trita Parsi, hereby declare and state as follows: I. I am over the age of eighteen years. I have personal knowledge of the facts set forth
herein and am competent to testify thereto.
2. I am the co-Founder and President of the National Iranian American Council (NIAC). NIAC is a nonpartisan, nonprofit organization operating under 26 U.S.C. § 501(c)(3).1t is based in Washington, DC.
3. NIAC also has a sister organization, NIAC Action, which operates under 26 U.S.C. § 501(c)(4). The top officer ofNIAC Action is Executive Director Jamal Abdi.
4. The goal ofNIAC Action is to strengthen U.S. diplomacy with Iran to advance peace and human rights, promote greater openings between the American and the Iranian people,
I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 80 of 227
protect civil rights and opportunities for Iranian Americans at home, and support candidates who represent the Iranian-American communities' values. To ensure its members have a powerful voice in the political process, NIAC Action provides its members with top caliber political resources, guidance, powerful advocacy tools and civic trainings, and grassroots leadership development. 5. I founded NIACin 2002 to provide a non-partisan, non-profit organization through which Iranian-Americans could participate in American civic life. NIAC works to strengthen the voice of Iranian Americans by promoting greater understanding between the American and Iranian people. It also seeks to advance the interests of the Iranian-American community on civic, cultural and political issues. The Iranian-American community approaches one million people, largely U.S. citizens or permanent legal residents. As a recent immigrant group, the Iranian-American community has strong ties to family members in Iran. 6. NIAC supplies the resources, knowledge, and tools to enable civic participation and informed decision-making regarding issues facing the Iranian-American community, and provides the infrastructure for bridge-building across the network of Iranian-American organizations and the peoples of the United States and Iran. NIAC accomplishes its mission through expert research and analysis, civic and policy education, and community building. 7. NIAC has worked to fight discrimination against the Iranian-American community, including dual citizens, legal permanent residents, and Iranian visa-holders. For example,
2

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NlAC fought discrimination at Monster.com in 2003, the world's largest online job search and career management company. Monstcr.com eliminated the word "Iran" from a section of its standard format resumes and dropped individuals and organizations from Iran from its website. After negotiations with NIAC, Monster.com agreed to change their policy of excluding educational experience in Iran from their standard resumes. NIAC has also petitioned for group inclusion to the U.S. Small Business Administration's program for disadvantaged minority groups, arguing that the Iranian-American community deserves government support to pursue business and financial endeavors in light of widespread discrimination in society as well as within the business world. 8. In addition, NIAC has successfully engaged U.S. financial institutions, such as Bank of Hawaii, who have adopted discriminatory policies towards Iranian persons, particularly students from Iran studying in the United States. NIAC has also successfully petitioned Apple and other U.S. retailers regarding discriminatory policies, such as one Apple store's refusal to sell Apple products to Iranian persons, including U.S. citizens and visaholders. NIAC objected to the University of Massachusetts's discriminatory policy
against Iranian students and elicited a reversal of the policy, as well as reversals at other universities. NIAC worked with Venmo to resolve payment difficulties, specifically with the use of specific keywords in the payment message - such as "Persian" and "Iran." NlAC led the campaign to fix the U.S.'s single-entry visa policy and to allow Iranian students to receive multiple entry visas. NIAC successfully opposed legislation in 2010 that would have barred every Iranian from entering the United States. Finally, NIAC
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 82 of 227
obtained an apology from Fox sportscasters for racially discriminatory remarks against Iranian NBA player Hamed Haddadi. 9. NIAC co-leads the largest coalition of advocacy groups in Washington, D.C. on U.S.-Iran related issues and regularly hosts briefings on Capitol Hill for congressional staffers on areas of interest to the Iranian-American community. Our past briefings have focused on Iran's parliamentary elections, Iran's nuclear program, Iran's role in Iraq, and more. I0. NIAC defends Iranian-American interests against corporate and media bias, discrimination, and government neglect; monitors, influences and shapes national legislation affecting Iranian Americans; and trains its constituents in successfully engaging in civic participation at dozens of workshops and functions across the United States. II. NIAC's constituency numbers in the tens of thousands, comprised mostly of those of Iranian heritage. Iran is predominantly a Muslim country. A vast majority ofNIAC's constituents have family members that enter the United States on tourist, occupational, immigrant, fiance, or student visas from Iran and other countries listed in the January 27, 2016 Executive Order ("EO"). NIAC's constituency is comprised of United States citizens, Legal Permanent Residents, and immigrant and nonimmigrant visa holders. 12. I was born in Iran and moved with my family at the age of four to Sweden to escape political repression in Iran. My father was an outspoken academic and Zoroastrian who was jailed by the Shah and, subsequently, the Ayatollah. I moved to the United States to study foreign policy at Johns Hopkins' School of Advanced International Studies, where
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 83 of 227
I received my Ph.D and studied under Professor Francis Fukuyama and Dr. Zbigniew Brzezinski. I am Ouent in Persian/Farsi, English, and Swedish. 13. As President ofNIAC, my duties include fundraising, strategic relationship building, constant interfacing with our constituents, and identifying problems faced by our community, as well as solutions to those problems. President Trump's January 27 Executive Order is the most vague, encompassing, and severe challenge faced by the Iranian-American community that I have witnessed in the past 15 years. 14. Outside of my work at NIAC, I have followed Middle East politics through work in the field and extensive experience on Capitol Hill and at the United Nations. I have served as a foreign policy advisor to a Republican lawmaker. I have worked for the Swedish Permanent Mission to the UN, where I served in the Security Council, handling the affairs of Afghanistan, Iraq, Tajikistan, and Western Sahara, and in the General Assembly's Third Committee, addressing human rights in Iran, Afghanistan, Myanmar, and Iraq. I have also served as an adjunct professor of International Relations at Johns Hopkins University SAIS, an adjunct scholar at the Middle East Institute, and a Policy Fellow at the Woodrow Wilson International Center for Scholars in Washington, DC. I am also an adjunct professor at Georgetown University. I have written three books on US foreign policy in the Middle East (the third one will be released later this year), and I have received several awards for these books, including the 20 I0 Grawemeyer Award for Ideas Improving World Order, and the 2008 Arthur Ross Book Award. My articles have been published in the Wall Street Journal, New York Times, Washington Post, Los
5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 84 of 227
Angeles Times, Foreign Affairs, Financial Times, Jane 's /lltel/igence Review, the Nation, The American Conservative, the Jerusalem Post, and The Forward, among others. In addition, I am a frequent guest on CNN, PBS Newshow·, NPR, and the BBC. NIAC's interest in and concern about enforcement of the January 27. 2017 Executive Order
15. NIAC is vitally interested in and concerned about the EO because it will adversely affect
our constituents, as well as the mission and purpose of our organization. As described in further detail below, the Cato Institute has documented that Iranian Americans have killed no Americans on U.S. soil. Despite this, the EO has a disproportionate effect on Iranians - for example, of 90,000 visa holders potentially impacted from the seven countries targeted by the EO, almost half are from Iran alone. 16. Further, enforcement of the EO has already caused NIAC to divert its substantial resources to combating the EO's pernicious effects on Iranians and Iranian Americans and will continue to do so. 17. In this statement, I first explain why enforcement of the EO against the Iranian-American community, which NIAC represents, is unfair and arbitrary. I then explain the hann that enforcement of the EO would cause to our organization's mission and resources in particular. Inclusion of Iran as one of the seven countries in the EO
18. Enforcement of the EO would not achieve its stated goals of "protecting the nation from foreign terrorist entry." This is because facts show that a target of the EO - Iranians 6

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 85 of 227
seeking entry into the United States - arc not the "would-be terrorists" the EO claims it seeks to deter. Despite this fact, Iranians are disproportionately affected by the EO given that, as explained below, almost half of the visa holders potentially impacted are Iranian. 19. The community of Iranians and Iranian-Americans in the United States is a robust, thriving one, which makes great contributions to American society and the economy. On the whole, Iranians are far more educated than the average American. According to a study based on the 2000 census completed by the Iranian Studies Group at MIT, the percent of Iranians over 25 years old who obtained a bachelor's degree or higher was 57%, in comparison to 24% for the rest of the population.' Iranian-Americans also hold five times the number of doctorates than the national average. The per capita income for Iranian-Americans is 50% higher than that of the nation, while the family income average is 38% higher. Iranian-Americans are highly represented in the tech industry, having founded or held top positions at Twitter, Dropbox, Oracle, Expedia, and eBay.2 IranianAmericans are also top venture capitalists and invest in technology startups. 20. The Iranian-American community tends to have close-knit family ties with both nuclear and extended families. The study completed by the Iranian Studies Group at MIT found that only 3% of Iranian-Americans live in unmarried households, compared to 7% nationally.3 It is typical for individuals to live with or have very close ties to their extended family.
l hnp:/J www.isgmic.orglprojects-storage/censuslsocioeconom ic.pd r
2https:l/www.theatlantic.comttechnologvlarchivel20 17/02:how-trumps-immigration-rules-wi11-hurt-the-us-techsector/ 51520 21 3http:/1www.isgmit.org/projects-storage/census: socioeconomic.pd f
7

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 86 of 227
21. According to a study conducted by the CATO Institute, from 1975 to 2015, there were zero reported incidents of a foreign-born citizen of Iran or any of the other seven countries listed in the EO killing Americans on U.S. soi1.4 In contrast, 162 Americans were ki lied by citizens of Egypt, 159 killed by citizens of Lebanon, 2,369 killed by citizens of Saudi Arabia, and 314 killed by citizens of the United Arab Emirates, none of which are included in the EO.
22. None of the individuals involved in the September II, 200 I terrorist attack were from lran.5 Fifteen of the 19 terrorists were citizens of Saudi Arabia, while the others were citizens of the United Arab Emirates, Egypt, and Lebanon.
23. No Iranians have been involved in terrorist attacks committed on U.S. soil since September 11, 2001 . The 2013 Boston Marathon bombing was carried out by two nonIranians: brothers from Chechnya.6 Chechnya is omitted from the EO. Further, the husband and wife who perpetrated the terrorist attack in San Bernardino, California, on December 2, 2015 were of Pakistani descent, another country not listed on the EO. The wife was a permanent resident, and her husband was a U.S. citizen at the time of the attack.70n June 12, 2016, Orlando, Florida was the location ofthe worst mass shooting by a single shooter in American history. The terrorist in that case was a U.S.-born citizen of Afghan descent. The EO does not ban the issuance of visas to immigrants from
4https://www.cato.org/blog!guide-trumos-exe cutive-order-limit-migration-national-security-reasons 5http:fiwww.cnn.co mr20 13107/27/us/seplembe r-11 th-hijackers-fast-factsf 6http://www.newsweek.comibrothers-who-became-boston-marathon-bombe rs-3 19822 7http:/Jwww.c nn.comf20 15/ J2103fusfs yed-farook-tashfeen-mal ik-mass-shooti ng-profite/
8

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 87 of 227
Afghanistan.8 24. Despite the lack of correlation between Iranians and terrorist activity explained above,
the EO has a disproportionate effect on Iranians. Of 90,000 visa holders potentially impacted from the seven countries singled out by the EO, almost half (42,542) are from Iran alone.9 Further, the burden of the EO will fall heavily on the shoulders of Iranian college students and will have a negative impact on the U.S. economy as a result. Of the seven countries referenced in the EO, Iran sends the largest number of students to the U.S. - 12,269 in the last academic year - and I Ith-most of any country in the world. 10 Finally, citizens of Iran and Iraq well outnumber those from the other five countries among green card and visa holders, 11 meaning that Iranians who are blocked from entry to the United States or are denied entry if they are in the United States and choose to travel abroad are largely those who are already legal U.S. residents. 25. In my opinion, enforcement ofthe EO will jeopardize relations between Iran and the United States. The historic nuclear accord reached in 2015 between the two countries demonstrated the power of diplomacy to resolve seemingly intractable problems. In the wake of the agreement, NIAC has advocated for the U.S. and Iran to expand bilateral and multilateral engagement beyond the nuclear issue with the aim of resolving all outstanding issues, as well as exploring areas of mutual interest. I fear that the EO will
8http://abcne ws.go.com US.omar-mateen-susoected-orlando-night-c! ub-shooter/story?id• 39790797 9https://www.washjogtonpost.cgmlnews. fact-checker/wp/20 17/0 1130•the-number-of-people-affected-by-trumpstravel-ban-about-90000/?utm term~.bc6 ftb54 fefl> 1~ttps:// fivethirtveight.com 1 featuresttrumps-immigratioo-order-could-affect-thousaods-of-college-studentsl 11https:l/www.propublica.orWarticleltrump-executive-order-could-block-legal-residents-from·retuming·to-america
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I

make such engagement difficult, if not impossible, and will seriously undermine the good that the nuclear accord achieved. 26. Further, I agree with the many national security experts and policymakers who have spoken out in the wake of the EO and said that its enforcement is likely to increase, not decrease, terrorism. The order will encourage the resentments and anxieties that, in some rare cases, support the ideology of the Islamic State or AI-Qaeda. 12
Harm to NIAC
27. There is a direct conflict between enforcement of the EO, which imposes a blanket ban on visa-issuance to immigrants from majority-Muslim countries, including Iran, and NIAC's mission of defending Iranian-American interests against corporate and media bias, discrimination, and government neglect, and monitoring, influencing and shaping national legislation affecting Iranian Americans.
28. The EO casts a negative pall on the Iranian-American community as a whole, singling out Iran as a source of"forcign terrorists," when in fact, according to a Cato Institute study which examined the years 1975 to 2015, no Iranian citizens have carried out a fatal terrorist attack on U.S. soil. In its blanket condemnation of Iranians who immigrate to and visit the United States, the EO itself discriminates against Iranian Americans while also inviting significant discrimination and bias against Iranian Americans by the media, corporations, and the public writ large. The EO's lack of basis in the facts, which show
12See. e.g., hnps://www.nvtimes.com/20 17101 ,28 us;politics a-sweepjng-order-unlikely-to-reduce-terrorist-
twhhreya-tt.rhutmmpI;-mhtitgphst:!-/bwewnewfi.tb-aros-oak-irnegsus.let/d;whbttlpo:g//,w'mwarwk.aiznid"Oep1e7n.d0elnt3t.0cJow.uhky/-vtoruicmesp!st-rpuomlipc-imesu-ws Iiim11--binancr-etearsreo-rtiesrrmo-riissmis--oannldv-·
make-it-worse-a 755 "776.html . 10

II '

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,I

that Iranian-Americans are not a serious terrorist risk, undermines NIAC's goal of enabling informed, fact-based decision-making regarding issues facing the Iranian American community. Enforcement of the EO will also strain relations between the United States and Iran, thereby debilitating NIAC's mission ofpromoting greater understanding between the Iranian and American people. In short, the EO stands against everything that NIAC stands for. 29. The EO has harmed many individuals who have reached out to NIAC for assistance and guidance. U.S. legal permanent residents of Iranian heritage have been denied entry into the United States on the basis of the EO and are unable to leave the United States absent confidence that they will be permitted re-entry; immigrant and non-immigrant visaholders of Iranian heritage, including, but not limited to, Iranian students studying and residing in the United States, have been unable to return to the United States, despite the fact that they are resident in the United States; and Iranians abroad have been unable to procure visas for travel to the United States. Even U.S. citizens of Iranian heritage, who are not targeted under the precise terms of the EO, have been negatively affected, as
family in Iran has been unable to visit. In addition, they too face its resulting stigma. 30. Since Defendant's executive order was signed, NIAC has had to expend a significant
amount of resources to respond to media inquiries and requests about the impact of the executive order on Iranian Americans and their families. NIAC has also spent a substantial number of hours providing guidance and educating the public and its members of the immediate impacts of Defendant's executive order on immigrants, green card
11

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 90 of 227
holders, pennanent residents, and U.S. citizens with non-citizen Iranian family members. Several members ofNIAC's staffand board of directors have been interviewed repeatedly and quoted in media reports discussing Defendant's executive order and have spent several hours on phone calls and meetings with constituents and others. NIAC will have to continue expending time and resources to media requests and inquiries. 31. Prior to Defendant Trump's January 27 EO, NIAC would dedicate a majority of its time and resources to public-education activities consistent with its mission. However, due to the large volume of media inquiries following Defendant's executive order, as well as the substantial concerns of its membership and others in the Iranian and Iranian-American community, NIAC's ability to continue public education activities is severely constrained due to its limited resources. 32. Due to the EO, NIAC has been flooded with calls and online inquiries directly related to
the EO. In just the first week after it was issued, NIAC received approximately 230 calls. 200 of those calls were from constituents directly affected by the EO seeking assistance; 30 calls were related to the EO in other ways; only five calls were unrelated to the EO. 33. During the same time period, a total of approximately II NIAC staff members were diverted, with over 647 hours spent on tasks directly related to the Trump EO. These tasks included, but are not limited to: responding to media inquiries; preparing action alerts and social media postings; collecting stories and launching a webpage to share the stories of constituents impacted by the EO; creating "know your rights" graphics; updating petitions; media appearances and interviews; fielding emails and phone calls
12

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from concerned and impacted constituents; organizing a "virtual protest;" organizing and managing grassroots volunteers; holding strategic meetings centered around the EO; contacting legislators and government agencies seeking clarifie ation on behalf of constituents; issuing press releases, and; drafting memorandums internally and to various legislators. 34. To respond to the numerous media inquiries and inquiries from policymakers and members of the public, NIAC has expended significant resources to conduct the legal research pertaining to the history of the First Amendment and Establishment Clause, as well as various statutes including the Religious Freedom Restoration Act, the Administrative Procedure Act, and the Immigration and Nationality Act. 35. This drain on time and resources directly related to the enforcement of the EO is certain to continue. In addition to having to closely monitor the impact of the EO on U.S. citizens and their family members, NIAC will have to continuously research and analyze potential legal actions, analyze data from the State Department and other agencies, draft and file related complaints, request information under the Freedom of Information Act (FOIA), and potentially litigate FOIA-related requests. 36. The expenditure of time and resources by NIAC used to counteract the negative effects of the EO, were and will continue to be, diverted from other projects and activities that NIAC would have otherwise been engaged in consistent with its mission. 37. In summary, the EO targets Iranians without any rational basis yet just in its first week of existence, the EO has already severely disrupted the Iranian American community. It has
13

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 92 of 227
sown confusion and anxiety as many worry about their now-uncertain legal status, whether they will be reconnected with family members, whether they will be able to live the lives that they have planned in the United States, or what the future holds for relations between the two countries.
14

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 93 of 227

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. - ,.

---· -

I, Trita Parsi, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
W Executed this~ day of February, 2017, in ~ ()c.

15

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 94 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 95 of 227
EXHIBIT 4
01)\':Un\Cntl

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 96 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION IN SUPPORT

OF OF

THE PUBLIC PLAINTIFFS'

AFFAIRS MOTION

ALLIANCE OF IRANIAN AMERICANS FOR PRELIMINARY INJUNCTION

Pursuant to Title 28 U.S.C. Section 1746, I, Leila Golestaneh Austin, 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 information provided to

me by others, and am competent to testify thereto.

I.

Background Information for the Public Affairs Alliance of Iranian Americans

(PAAIA)

2. I am the Executive Director of the Public Affairs Alliance of Iranian Americans

(PAAIA). PAAIA, Inc. is a 501(c)(4) nonprofit, bipartisan, non-sectarian, national membership

organization with an affiliated 501(c)(3), IA-100, Inc. I have been the Executive Director at

PAAIA since February I, 2015.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 97 of 227
3. Because of my position as Executive Director, I know about the history and background of PAAIA as well as the organization's mission and purposes. I am also involved in the day to day operations of PAAIA, and thus am very familiar with our current expenses and resources. I oversee the programs and activities sponsored by PAAIA and am either involved directly or indirectly with the publications PAAIA releases or otherwise contributes to.
4. The 50l(c)(3) of PAAIA has an exclusive membership comprised entirely of Iranian Americans. All of the approximately 50 members of the PAAIA 50l(c)(3) are either U.S. citizens or legal permanent residents and almost all reside in the United States. Membership in the 501(c)(3) is by invitation and invitees are individuals who have demonstrated leadership in their respective fields, are active in the Iranian American community, and are willing to commit their resources in the promotion ofPAAIA's goals and programs.
5. The 501(c)(4) of PAAIA also has members who register online with the organization. Members can elect online to register for either the free membership, the $100 Supporters members, the $1,000 Ambassador's Circle, the $2,500 Congressional Club membership, or the $5,000 National Leadership Circle membership. In addition, PAAIA has 18,645 individuals on our mailing list who receive our communications, 8,452 of whom have signed up under the free membership program and have the option to donate to certain programs.
6. As explained in more detail below, PAAIA engages in many programs and activities which are developed and implemented by a staff located in Washington, D.C. Currently there are three full time PAAIA staff members, including myself, and two part-time university students working as staff members.
2

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II. Mission & Purpose of PAAIA
7. PAAIA was founded to represent and advance the interests of the Iranian American community, which is estimated to be a population approaching one million people, a large portion of which are citizens or permiment legal residents. Iranian Americans are patriotic and have served in all branches of the military and many have dedicated their lives to public service. Working in tandem with the community at large and with other organizations, PAAIA has effectively promoted the role of Iranian Americans in the social, cultural, and economic tapestry of the United States. Serving the interests of Iranian Americans and representing the community before U.S. policymakers and the American public nt large, it works to foster greater understanding between the people of Iran and the United States. expand opportunities for the active participation of Iranian Americans in the democratic process at all levels of government and in the public debate. and provide opportunities for advancement for our next generation.
8. Since its inception in 2008, PAAIA continues to carry out its mission by engaging in programs and activities throughout the United States to benefit Iranian Americans and promote a positive image of Iranian Americans. For example, PAAIA has implemented programs such as Passing the Torch of Success, the Nowruz Project, Nowruz on Capitol Hill, Cyrus Cylinder Tour at the Asian Art Museum in San Francisco, and A Thousand Years of the Persian Book at the Library of Congress in Washington, D.C., all of which portray a more accurate image of the Iranian-American community to the general public, policymakers, and lawmakers.
9. PAAIA also tights discriminatory and harassing treatment towards Iranian Americans and stands up for the rights of Iranian Americans by working on issues such as addressing inflammatory remarks about Iranians made by a retired Stanford faculty member;
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 99 of 227
ensuring that the professional networking website, Linkedln placed Iran back on their education drop-down menu from where it had been removed; and working with the American Values Network (AVN) to have them drop an anti-oil ad campaign that targeted Iran in favor of a new concept that promotes clean energy but shields innocent Iranians and Iranian Americans from a bad image. In more recent years, PAAIA has written to Chancellor Kumble R. Subbaswamy, of the University of Massachusetts, Amherst, expressing disapproval of the University's new policy which banned Iranians from enrolling in graduate engineering programs; sponsoring a letter signed by 37 prominent Iranian Americans urging the 2016 presidential candidates to refrain from broad generalizations about the Iranian people when discussing the prospective nuclear agreement taking shape between the P5+ I and Iran. In 2015, PAAIA launched a National Communications Campaign to inform the general public as well as U.S. lawmakers about the Iranian-American community's broad support for the Iran Nuclear agreement.
I 0. PAAIA also continues to educate the general public, lawmakers, and policymakers about the Iranian-American community. For example, in May 20 I4, PAAIA released a report, "Iranian Americans: Immigration and Assimilation," available through PAAIA's website at http://www.paaia.org/CM S/Data/Sites/ 1/pdfs/iranian-americans--immigration-and-assimilation.pdf, the first in a series of three reports providing more in-depth information about Iranian Americans, which discussed among other things the three major waves of Iranian immigration to the United States, self-identification of the Iranian American community, and typical benchmarks of assimilation. As another example, in June 2015, PAAIA released its 2015 Survey of Iranian Americans, which was presented in a congressional briefing and released to the public at large in connection with a panel discussion hosted by PAAIA on the Iran nuclear negotiations. PAAIA's annual Survey of Iranian Americans is available at
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 100 of 227
http://www.paaia.org/CMS/survev-of-iranian-americans.aspx. These are just a few examples of the numerous publications about and on issues concerning Iranian Americans that are released by PAAIA every year.
II . Because one of PAAIA 's key initiatives is leadership-building, PAAIA operates a number of youth programs to encourage future Iranian American leaders. PAAIA's youth programs include sponsoring public service fellowships for Iranian Americans throughout the United States and helping young Iranian Americans obtain internships with legislative offices in Washington D.C.
12. PAAIA has been featured in national and international print and online news media. The organization writes news articles and monitors the media reports on Iranian Americans. PAAIA is also viewed by Iranian Americans as a source of information about issues impacting the community.
III. PAAIA's Promotion of the Iranian American Community
13. According to PAAIA's 2014 report on Iranian Americans: Immigration and Assimilation, while the first known Iranian American, Mirza Mohammed Ali (better known as Hajj Sayyah, "The Traveler") arrived in the United States in approximately 1867, the first wave of Iranian immigration to the United States did not occur until the 1950s. PAAIA 's report explained that most Iranian Americans arrived in the United States during the second wave of migration from 1979 to 200 I and were fleeing oppression in Iran. The report went on to describe how these second-wave Iranians, as opposed to earlier immigrants, were more likely to identify themselves as exiles or political refugees.
14. PAAIA has also published reports documenting how upon arriving in the United States Iranians quickly assimilated into and thrived in American culture. PAAIA provides some
5

I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 101 of 227

•

••

••
r

of this infonnation on the Demographics & Statistics page of its website, http://www.paaia.org/CMS/demographics--statistics.aspx. As PAAIA details online, Iranian Americans have educational attainments that greatly surpass the national average. According to Ronald H. Bayer's Multicullllra/ America: An Encyclopedia of the Newest Americans, about 50 percent of all working Iranian Americans are in professional and managerial occupations, greater than any other group in the United States at the time the survey was conducted.
15. While assimilating into American society, Iranian Americans maintain close ties to their family in Iran. According to PAAIA's 2016 National Public Opinion Survey of Iranian Americans, available online at http://www.paaia.ori.!ICMS/Data/Sites/ I/ PDFs/PAAIA-201 6Reportrev-newcover.pdf, 84% of respondents have family in Iran and approximately one-third are in contact with their family or friends in Iran at least several times per week. PAAIA's 2016 survey further reported that thirty percent of respondents traveled to Iran once every two or three
years. 16. Both as individuals and as a community Iranian Americans have actively
participated in and enriched all levels of American culture and society, and have contributed to economic growth in America. PAAIA has profiled or made public infonnation about many prominent Iranian Americans, including Cyrus Habib, Lieutenant Governor of Washington; Hadi Partovi, CEO of education non-profit Code.org; and Firouz Naderi, the fonner associate director of NASA's Jet Propulsion Laboratory. Iranian Americans have also founded some of the most innovative companies in the last twenty years and have been on the forefront of innovations in the technology sector. To provide just a few examples of prominent Iranian Americans who I am aware of, an Iranian American, Pierre Omidyar, founded eBay; an Iranian American, Omid Kordestani, serves as the Executive Chainnan of Twitter; Farzad Nazem, serves as chief
6

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 102 of 227
technology officer at Yahoo; an Iranian American, Salar Kamangar, is currently the CEO of YouTube; Iranian American Omid Kordestani is Twitter's Executive Chairman.
17. Iranian Americans have also made significant contributions to the arts, such as Shoreh Aghdashloo, an Iranian American actress whose work has been recognized by the Emmys and the Oscars, and Nasser Ovissi, an internationally acclaimed artist.
18. I am also aware of Iranian Americans who have made important contributions in public service, serving in both national and state offices, such as Cyrus Amir-Mokri, who served as the Assistant Secretary for Financial Institutions at the United States Treasury; Faryar Shirzad, who served on the staff of the National Security Council; Goli Ameri, the current President and CEO of the Center for Global Engagement; and Azita Raji, who was nominated by President Obama to serve as United States Ambassador to the Sweden.
19. And, while the Iranian-American community has been smeared as terrorists by the Executive Order, the very first responder in the San Bernadino terrorist attack was an IranianAmerican medic. One of the victims of that atrocious act was also an Iranian-American.
IV. PAAIA's Interest In and Concern About Enforcement of the January 27,2017 Executive Order
20. PAAIA is vitally interested in and concerned about the January 27, 2017 Executive Order, "Protecting the Nation from Foreign Terrorist Entry into the United States" (the "EO").
21. The EO disrupts PAAIA's m1ss1on of encouraging constructive relations and enhancing mutual understanding between the peoples of the United States and Iran. We are receiving inquiries from our membership as to whether the enforcement of the EO will also strain relations between the United States and Iran, thereby debilitating PAAIA's mission of
7

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 103 of 227
promoting greater understanding between the Iranian and American people. Members are concerned that the Executive Order creates a negative stigma on Iranian Americans, directly conflicting with the missions and purposes of PAAIA, which stands for the positive impact of Iranian Americans.
22. PAAIA's members have been adversely affected by the signing of the EO. For example, a PAAIA member- an Iranian-American, internationally renowned doctor, who immigrated to the United States after the Iranian government imprisoned him for several years in what was considered to be an unjust and politically motivated strike- was tremendously impacted by the EO when his brother, despite having a valid visa and being a visiting scholar at an American university, was not allowed to re-enter the United States this week after visiting their elderly father in Iran. This member reached out to me, and through PAAIA's connections I helped him obtain assistance from attorneys working with Iranian Americans whose family members have been stranded in Iran as a result of the EO. In addition, members with family in Iran are concerned about the likelihood that their family will no longer be able to come to the United States, in some case their parents.
23. Enforcement of the EO has already caused PAAIA to divert substantial resources to combating the EO's discriminatory effects, and will continue to do so. Since the EO was signed, PAAIA has had to divert most of its resources to responding to media inquiries and requests about the impact of the EO on Iranian Americans and their families, providing guidance and educating the public on the impact of the EO, and developing a strategy for how to respond to the EO. PAAIA has held emergency phone calls on this subject, including an emergency telephone conference for concerned Iranian Americans with immigration and civil rights lawyers to provide its members and other Iranian Americans information about the EO and how it might
8

II

,_ -

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 104 of 227
-

. ....::.

-- --

impact their lives. PAAIA has also prepared several press releases and informational memorandum for its members concerned about the EO. The day to day activities of PAAIA have shifted away from its regular programs and activities towards combating the negative and wrongful effects of the EO on PAAIA's members and other Iranian Americans.
24. After the EO was signed, PAAIA had to divert its resources away from its normal programming and activities. For example, PAAIA was scheduled to launch a new fellowship program for Iranian American youth, but was unable to do so after the EO forced PAAIA to divert its resources. Similarly, the EO forced PAAIA to postpone an event that was going to be hosted on behalf of an Iranian American running for local office. PAA lA has also been unable to devote staff time to activities such as planning for the organization's upcoming annual event on Capitol Hill, fundraising for the organization, informational and networking events for members, and electioneering activities for the organization.
25. As another example of how PAAIA has had to divert resources to address the EO, shortly after the EO was signed, on January 29, 2017 I wrote an op-ed piece for the Huffington Post detailing how the EO punished Iranian Americans who had proven every day that they were patriotic and fully supportive of national security concerns. As I explained in this article, the United States should not "tum a blind eye to the fact that the people of Iran have consistently demonstrated their affinity for the core values of our American democracy including liberty, freedom, and the rule of law. . . . [B]y using a broad brush to label all Muslims as enemies of America, the order ignores the fact that there has never been a single act of terror committed by anyone of Iranian descent in the United States." This article was published online at http:/ /www.huffingtonpost.com/entrv/ punishing-the-innocent-in-the-name-of-nationalsecurity us 588d7674e4b0 17637794e356?u4ajuw4rcyvr96bt9.
9

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 105 of 227
26. The EO will continue to force PAAIA to divert time and resources. In addition to having to closely monitor the impact of the EO on its members and other Iranian Americans,
including U.S. citizens and their family members, PAAIA will have to continuously research and
analyze legal actions, monitor announcements and activity from the Departme nt of Homeland Security and other agencies, respond to and act upon concerns from Iranian Americans about the EO, and rally the community to direct their concerns to their Congressional representatives.
10

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 106 of 227 I, Leila Golestaneh Austin, declare under penalty of pedury that the foregoing is true and
correct to the best of my knowledge.
8: Executed this day of February. 2017, in Wc.~o~,l>c.
Leil Golestaneh A:ustm
Executive Director, Public Affairs Alliance ofIranian Americans
l1

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 107 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 108 of 227
EXHIBIT 5
Oocum~-ntt

· -- ~ Cas--e 1-:-17-cv-00255-TSC

Document 9
.

Filed 02/08/17

Page 109 of 227

.

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~d

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF ALI ASAEI IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Ali Asaei, hereby declare and state as
follows: l. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained
herein. I. Background: 2. I am an Iranian citizen. I first came to the United States on September 6, 2013 on an F-1
student visa. I obtained my master's degree in electrical engineering at SUNY - New Paltzin in December 2015.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 110 of 227
3. I then applied for and was granted F-1 OPT status, which allows me to perform work directly related to my major area of study for twelve months. My OPT status expires in June 2018.
4. Since August 2016, I have been working as a research assistant at the Nathan Kline Research Institute, which is part of the Research Foundation for Mental Hygiene (RFMH).
5. I live in Fort Lee, New Jersey. 6. As a research assistant, I complete MRI image processing of brains to understand brain
structure as well as the structure ofdiseases like Alzheimer's and Parkinson's disease. Our goal is to learn enough about the brain to predict the occurrence of these and other diseases. The funding for this project comes from the National Institute of Health (NIH). 7. In addition to my work as a research assistant, I help write image processing software that has clinical and/or research applications. 8. Outside of my work at RFMH, I have also volunteered with a local refugee organization in Jersey City, New Jersey. 9. I was also recently featured in a New York Times article entitled, ..Twitter Adds New Ways to Curb Abuse and Hate Speech," https://www.nvtimes.com/20 16/ 11 / 16/technologv/twitter-adds-new-wavs-to-curb-abuseand-hate-speech.html? r=O 10. 1 last saw my mother and sister in 2014, when they visited me in the United States on B-1
and B-2 tourist visas. I have not seen my brother or father since 2013.
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 111 of 227

II. My parents and sister have long been planning to visit the United States. I personally

petitioned for visas for my family. My parents paid $160.00 each for their visa

applications.

12. Within a few years of applying, they were able to get a nonimmigrant visa appointment at

the U.S. Embassy in Dubai. The appointment was scheduled for February 15, 2017.

II. Harm Caused by the January 27,2017 Executive Order:

13. As a result of the January 27,2017 Executive Order (EO), the U.S. Embassy in Dubai

sent my parents an email on January 31, 2017 notifying them that their visa appointment

has

been

cancelled.

My

family

and

I

hav. e

received

no

further

communication

clarifying
'

whether their visa appointment will be rescheduled.

14. My parents are currently unable to travel to the United States to visit me. I am also unable

to travel to Iran to visit them due to fear of being prevented from returning to the United

States as a visa holder.

15. Under the terms of the EO, it is unlikely that I will be able to extend or apply for new

work authorization when my current OPT status expires.

16. Ifthe EO continues to be enforced I will be prevented from seeing my family. As a

consequence of not being able to extend or apply for new work authorization, I will likely

be forced to quit my job and leave the United States permanently upon the expiration of

my OPT status or earlier. This prospect has caused me great mental and emotional

distress.

---

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 112 of 227

.~_

l

-,

···-

-

-

.

·~~

I, Ali Asaei, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this _.Q._ day of February, 2017, in Orangeburg. NY lsi Ali Asaei
Ali Asaei

4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 113 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 114 of 227
EXHIBIT6
f)oc;ymcntl

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 115 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF SHIVA HISSONG IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Shiva Hissong, hereby declare and state as

follows:

I.

My name is Shiva Hissong. I am over the age of eighteen years, and I have

personal knowledge of the facts set forth herein or believe them to be true based on my

experience or upon information provided to me by others. If asked to do so, I could testify

truthfully about the matters contained herein.

I. Background:

2.

I reside in Spokane, Washington. In November 2016 I received authorization to

work in the United States but am currently a stay-at-home mother. My husband works as an

architect in Spokane, and owns an architecture firm and an advertising agency.

3.

I am a citizen of Iran and a Green Card holder (legal permanent resident) of the

United States.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 116 of 227

4. I am a Muslim and adhere to the religion of Islam.

5. I was a student in Italy from August 2012 until March 2016. I was there on a student visa and earned credits toward my Bachelor's Degree in fashion. While studying in Italy, I met my husband in Rome.

6. After my future husband and I got engaged, I applied for and received a K-1 visa. 7. I entered the United States on this K-1 visa on March 3, 2016.

8. My husband and I were married on April 17, 2016 and hosted a wedding ceremony on August 28, 2016 in Spokane, Washington.

9.

My parents reside in Tehran, Iran. My father has been ill with Parkinson 's

disease for the past ten years, and his condition has significantly deteriorated in the last three to

four years.

I0. My parents were unable to obtain visas to attend my wedding due to a lack of visa appointments at the United States Embassies in the United Arab Emirates, Armenia, or Turkey.
II . Subsequently, my parents decided that they would try to visit the United States for the birth of their grandson.

12. In October 2016, my parents were able to get a visa appointment at the United States Embassy in Yerevan, Armenia. The interviewing officer informed my parents that they had to undergo an administrative interview that would take approximately three to six months.
13. My son was born on November 28, 2016. My parents were not present for his birth pending their visa applications and administrative process. They have not yet met my son.
14. In light of my father's illness and the extended application process for my parents to obtain a visa to visit the United States, my parents and I made plans to meet in Dubai, United Arab Emirates in March 2017 so that my parents could meet their grandson.

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 117 of 227
II. Harm Suffered Post January 27,2017 Executive Order: 15. Prior to my parents completing an administrative interview for their visa
applications, President Donald Trump signed an Executive Order on January 27, 2017 (EO) immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of Iranian citizens into the United States.
16. Following the signing of the EO, my parents' visas applications are on hold or may have already been denied. The United States Embassy in Yerevan, Armenia has not, to the best of my knowledge, issued any electronic mail or guidelines to my parents with respect to
their applications. 17. As a result of the confusion and uncertainty surrounding my parents' visa
applications under the terms of the EO, I do not know if my parents will be able to visit the United States while my father is healthy enough to travel.
18. The morning after the EO was signed, the immigration attorney that I had retained advised me that I should not leave the United States due to the EO.
I 9. As a result of the EO, I became very concerned about my ability to exit and reenter the United States, and decided to cancel my family's visit to the United Arab Emirates in March 2017. My parents will not be able to meet their grandson as originally planned. Given my father's illness, I am concerned about whether he and my mother will ever be able to meet my son and I would not have canceled our visit but for the EO and the resulting confusion about whether or not legal permanent residents like myself will be allowed to travel to and from the
United States. 20. In addition, prior to the signing of the EO, my husband and I had purchased plane
tickets to visit Amsterdam, the Netherlands. Following the signing of the EO, I became
3
--......

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 118 of 227
concerned about my ability to exit and reenter the United States and have subsequently decided not to visit the Netherlands as originally planned.
21. As a result of the confusion and uncertainty surrounding my legal resident privileges under the terms of the EO, 1 do not know if 1 will be able to travel outside the United States.
22. I have received no guidance, information, clarity, instruction, or correspondence from the United States government or my attorney concerning the issuance of visas and/or whether my parents' visas will be issued in course or whether it will not be issued under the terms of the January 27 Executive Order.
23. I have received no guidance, information, clarity, instruction, or correspondence from the United States government or my attorney concerning the status of my legal residency privileges under the terms of the January 27 Executive Order.
24. As a result of the confusion and uncertainty surrounding my parents' visa applications under the terms of the January 27 Executive Order, my family and myself have been greatly emotionally distressed about whether my son and/or I will be able to see my parents, especially given the severity of my father's illness.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 119 of 227
I, ShiYB Hiuon& declare 1llld«pcma1ty ofperjury that the foresoiog ia true and correct to
the best ofmyknowledge.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 120 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 121 of 227
EXHIBIT7
Dl>cumcn\ I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 122 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, Inc . eta/,

) )

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States,
~~

)
)

)

)

Defendants.

)

Civil

Action

No. -~-

DECLARATION OF OMID PLAINTIFFS' MOTION FOR

MOGHIMI IN SUPPORT OF PRELIMINARY INJUNCTION

Pursuant to Title 28 U.S.C. Section 1746, I, Omid Moghimi, hereby declare and state as follows:

I.

My name is Omid Moghimi. I am over the age of eighteen years, and I have

personal knowledge of the facts set forth herein or believe them to be true based on my

experience or upon infonnation provided to me by others. If asked to do so, I could testify

truthfully about the matters contained herein.

I. Background

2.

I am 28-years-old and currently reside in Enfield, Massachusetts. I am currently

employed as a first year resident at Dartmouth-Hitchcock Medical Center in the field of internal

medicine. I earned my Medical Degree from Tufts University in Boston, Massachusetts.

3.

I am a dual citizen of the United States and Iran. I was born in the United States

and also hold Iranian citizenship.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 123 of 227

4.

My mother, father, and older brother are all United States citizens.

5.

I married Dorsa Razi in July 2015. My wife is currently 21-years-old and living

in Iran. She has completed two years of her undergraduate studies in mechanical engineering at

Tehran University in Karaj, Iran.

6.

My wife and I are both Muslim.

7.

On or about August 3, 2015, I filled out a fonn "i-130" and petitioned for an IRI

visa for my wife. My wife dropped out of her undergraduate program in anticipation of moving

to the United States.

8.

The petition was approved by United States Citizenship and Immigration Service

("USCIS") on or about December 1, 2015 and was sent to the National Visa Center ("NVC") for

further processing.

9.

On or about January 13, 2016, I received an acknowledgment letter confirming

that NVC had received my wife's petition from USCIS and requested we take some further

action to prepare for the visa interview process. l 0. On or about June 5, 2016, I received a correspondence from NVC acknowledging
receipt of documents, however, due to a high volume of petitions being processed, we were
advised that NVC required an additional 30 days to review the documents. 11. Forty-six days later, on or about July 21, 2016, I received an e-mail from NYC
acknowledging that they have received all of the documentation required, and that my wife's petition had been placed in the queue to be scheduled for an interview with a consular officer

who would adjudicate my wife's visa petition.

2
--------.........

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 124 of 227

12.

On or about December 29, 2016, I received an e-mail from NVC notifying my

wife and I that a visa interview had been scheduled for at the U.S. Embassy or consulate in Abu

Dhabi, UAE on February 2, 2017 at 8:00a.m.

I 3.

In reliance on the visa interview appointment, I purchased flights and made hotel

reservations for my wife and mother-in-law to travel from Iran to Abu Dhabi. l paid approximately$ I,500.00 for the flight and hotel reservations. By all indications, my wife 's visa

would have been adjudicated and issued but for the January 27 Executive Order.

II. Harm Caused by the January 27,2017 Executive Order:

I 4.

On January 27, 2017, President Trump issued an Executive Order restricting the

issuance of visa's to Iranian citizens, and preventing Iranian immigrants and nonimmigrants

from entering the United States. Under the terms of the Executive Order, my wife would not be

issued a visa and would be prevented from entering the United States.

I 5.

On or about January 28, 2017, the day following the signing of the executive

order, I received an email from "asknvc@state.gov" stating the following: "Due to unforeseen

circumstances, your interview appointment has been canceled. We will reschedule your

immigrant visa interview date and inform you of the new appointment date as soon as we are

able. You do not need to take any action at this time. We apologize for any inconvenience this

may have caused."

16.

On or about January 29, 2017, I received another e-mail stating the following:

..Per U.S. Presidential executive order, signed on January 27, 2017, visa issuance to aliens from

the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen, has been suspended

effective immediately until further notification. Your upcoming visa appointment was cancelled

in compliance with these new directives. If you are a national or dual-national of one of these

3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 125 of 227
countries, please do not attempt to schedule a visa appointment, pay visa fees at this time, or attend your previously scheduled visa appointment."
17. To date, I have paid approximately $500.00 in visa application fees for my wife. 18. As of the date of this affidavit, my wife and mother-in-law are in Abu Dhabi and will be flying back to Tehran, Iran on or about February 3, 2017. 19. I have received no guidance, information, clarity, instruction, or correspondence from the United States government concerning the enforcement of the January 27 Executive Order and/or whether the NYC will reschedule my wife's visa appointment. I also have no information about whether my wife will be issued an IRI visa or if she will be allowed to enter the United States. My wife and I are both greatly distressed about what will happen to our family because of the Executive Order. I am faced with a very difficult decision of continuing my residency and being separated from my wife, or withdrawing from my residency and flying to Iran to be with my wife. 20. As a direct result of the uncertainty caused by the EO, I have been extremely anxious, stressed, unable to sleep and eat, depressed, and nervous because I am unclear about whether I will continue to be separated from my wife.
21. I have been checking various internet websites and blogs every day since January 27,2017 in an attempt to gather further information about the issuance of visas.
22. I am familiar with, have registered for, and participated in, various events and functions organized by the National Iranian American Council ("NIAC") over the last five years.
23. I am afraid because I fear that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my wife for participating in this action.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 126 of 227

I, Omid Moghimi, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this_§_ day of February, 2017, in Enfield. NH .

Is/ Omid Moghimi Omid Moghimi

5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 127 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 128 of 227
EXHIBITS
Docum~:ntl

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 129 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF JANE DOE #I IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe# I, hereby declare and state as follows: I. My name is Jane Doe #I. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I am 28-years-old and currently reside in San Diego, California. I am employed with the City of San Diego. I have my Master's Degree in city planning from San Diego State University. 3. I am a dual citizen ofthe United States and Iran. 4. I am a Muslim and adhere to the religion of Islam.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 130 of 227

5. My family sold all of their belongings and assets in Iran and immigrated to the United States in 200 I . I was 11-years-old at the time and moved with my mother, father, and

sister.

6. lt took approximately twelve (12) years for my fam ily to be approved to become

Green Card holders (legal permanent residents). My family has continued to live in the United

States since 200 I and myself, my mother, my father, and my sister are all United States citizens.

7. Both of my parents are small business owners in the United States.

8.

In 2013, I met my fiance in San Diego while he was visiting the United States on

a tourist visa. He is 29-years-old with a Master's Degree in engineering from Sharif University

ofTechnology in Tehran, Iran. 9. After traveling to Iran several times to visit my fiance, we got engaged to be
married in October of 2015. Thereafter, we immediately engaged the services of a Los Angeles, California immigration attorney in December of 20 IS to assist us with the visa process for my

fiance to move to the United States. 10. My fiance 's petition for K-1 visa was submitted in February 2016 and was

approved by April of2016. The case was created by May of2016. II. In October 2016, my fiance and I traveled to Abu Dhabi for the immigrant visa
interview. Thereafter, the visa was adjudicated and approved, and we were advised that

..additional administrative processing" could take up to six months.

II. Harm Caused by the January 27,2017 Executive Order:

12. I have personally checked the U.S. State Department website every day since October 2016 for status updates on my fiance's visa. The last entry was updated on January 10, 2017 containing general information.
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 131 of 227
13. Subsequent to the approval in October of 20 16, but prior to my fiance's visa being adjudicated and issued, President Trump signed an Executive Order on January 27, 2017 immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of
Iranian citizens into the United States. 14. To date, I have paid approximately $5,000.00 in travel expenses to Abu Dhabi for
my fiance's immigrant visa interview. I have also paid approximately $3,500.00 in legal fees. 15. Prior to the January 27 Executive Order, my fiance and I had been planning an
extravagant wedding ceremony in the United States that was scheduled for 2018. 16. To date, I have spent hundreds of hours planning my wedding and I have
executed contracts and paid $2,500.00 as a down payment to secure a wedding venue. An additional $2,500.00 payment will become due in May of 2017. As a result of the confusion and uncertainty surrounding my fiance's visa under the tenns of the January 27 Executive Order, I don't know if I should continue to make payments to the wedding venue and/or otherwise
continue planning our wedding ceremony. 17. I have received no guidance, information, clarity, instruction, or correspondence
from the United States government or my attorney concerning the issuance of visas and/or whether my fiance's approved visa will be issued in course or whether it will not be issued under
the terms of the January 27 Executive Order. I8. I have been checking various internet websites and blogs every day since January
27, 2017 in an attempt to gather further infonnation about the issuance of visas. 19. As a direct result of the uncertainty caused by the EO, I have been extremely
anxious, stressed, unable to sleep and eat, and nervous because I am unclear about whether I will
be able to be reunited with my fiance and get married.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 132 of 227 20. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the
State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my fiance for participating in this action.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 133 of 227 I, Jane Doe# I, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge.
Executed this _.L day of February, 2017, in San Diego, CA . l si Jane Doe #I
Jane Doe #I
5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 134 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 135 of 227
EXHIBIT9
Docum:cnll

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 136 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center, '

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States,
~~

)
)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF PLAINTIFFS' MOTION

JANE DOE #2 IN SUPPORT OF FOR PRELIMINARY INJUNCTION

Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #2, hereby declare and state as follows:

I.

My name is Jane Doe #2. I am over the age ofeighteen years, and I have personal

knowledge of the facts set forth herein or believe them to be true based on my experience or

upon infonnation provided to me by others. If asked to do so, I could testify truthfully about the

matters contained herein.

I. Background:

2.

am 32-years-old and currently reside in Phoenix, Arizona. I am currently

employed as a database administrator for FedEx Services where I have worked for

approximately five years. I have my Master's in Business lnfonnation Systems from the

University of Memphis.

3.

I am a dual citizen of the United States and Iran. I became a citizen of the United

States on or about 2008.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 137 of 227

4. I immigrated to the United States in December of 2007, with my mother, father,

both of whom are also United States citizens.

5.

In 2016, I petitioned for a student visa on behalf of my sister, who is currently in

Iran. My sister is 35-years-old, and is in the last semester of her Master's program for

architecture. She is a synchronized swimmer who has coached for the Federation lnternationale

de Natation ("FINA''), the international governing body for competitive swimming and aquatics.

My sister is also an artist that frequently paints and does intricate mosaic work.

6.

I engaged the services of an immigration attorney in Los Angeles, California to

assist my sister with the visa issuance process. To date, I have paid approximately $2,000.00 in

attorneys' fees.

7. My mother, a dual citizen of Iran and the United States, traveled to Iran

approximately two years ago to be with my sister. My father, also a dual citizen of Iran and the United States citizen, traveled to Iran approximately seven months ago to assist my sister and

mother. My father was recently diagnosed with Stage 1-2 cancer. My parents are both retired.

8. Approximately six months ago, I was infonned that my sister's petition had been

approved by the United States Citizenship and Immigration Service (USCIS) and the National

Visa Center (NVC), and an immigrant visa interview was scheduled for her in Abu Dhabi.

9. After her initial visa interview in Abu Dhabi, my sister's visa was denied by the

consular officer due to a clerical error between the NVC and the immigration office in Abu

Dhabi. She was forced to fly back to Iran, and return back to Abu Dhabi several months later

after the clerical error had been corrected.

I0. My sister traveled back to Abu Dhabi a second time, underwent a second full

medical examination, and her visa was adjudicated and issued approximately four months ago.

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 138 of 227
Thus, she currently holds a valid F-11 visa that should allow her to travel to the United States. Her visa is set to expire in March 20 17.
II. I immediately began planning for my sister to make her first entry into the United States in Phoenix, Arizona, where I currently reside, to help her get acclimated and assist her with completing her immigration documents. My sister intended to complete her architecture studies in the United States.
12. I purchased a flight for my sister to depart Iran on or about February 15, 2017 for approximately $1 ,000.00. My mother and father also purchased tickets to return back to the United States on or about February 16,2017. II. Harm Caused by the January 27, 2017 Executive Order:
13. On January 27, 2017, President Trump issued an Executive Order restricting the issuance of visa's to Iranian citizens, and preventing Iranian immigrants and nonimmigrants from entering the United States. Under the terms of the Executive Order, my sister will be prevented from entering the United States.
14. Upon information and belief, due to her status as a visa-holder, my sister will be prevented from boarding flights departing Iran and/or will be prevented from entering the United States.
15. To date, I have paid approximately $6,000.00 to $7,000.00 for visa-related expenses for my sister. As a direct result of the uncertainty caused by the EO, I have been extremely anxious, stressed, unable to sleep and eat, and nervous because I am unclear about whether I will be able to see my sister.
16. I have received no guidance, information, clarity, instruction, or correspondence from the United States government or my attorney concerning the enforcement of the January 27
3

-

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 139 of 227

-

.. , - ·--- -··· ~

.

'I
, .I

Executive Order and/or whether my sister will be prevented from leaving Iran or entering the
United States. 17. I have been checking various internet websites and blogs every day since January
27, 2017 in an attempt to gather further infonnation about the issuance of visas. I have also contacted the National Iranian American Council (NIAC) and checked their website to get guidance and gather more infonnation about the Executive Order.
18. As a direct result of the uncertainty caused by the EO, I have been extremely anxious, stressed, unable to sleep and eat, and nervous because I am unclear about whether I will
be able to see my sister. 19. I am familiar with, have registered for, and participated in, a ..virtual protest"
organized by NIAC in an effort to petition members of Congress for legislative relief from the negative effects and consequences of the January 27 Executive Order on Iranian Americans.
20. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against my family for participating in this action.

4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 140 of 227

I, Jane Doe #2, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this _i_ day of February, 2017, in Phoenix. AZ .

Is/ Jane Doe #2 Jane Doe #2

5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 141 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 142 of 227
EXHIBIT 10
Oocumrotl

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 143 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. el a/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendanls.

)

- - - Civil Action No.

DECLARATION OF JANE DOE #3 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #3, hereby declare and state as follows:
I . My name is Jane Doe #3. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon infonnation provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am 39-years-old and currently reside in Irvine, California. I am currently employed as a realtor with HomeSmart/Evergreen Realty. I have my Bachelor' s Degree from Azad University in Iran in the tield of English translation.
3. I am a dual citizen of the United States and Iran.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 144 of 227

4.

I immigrated to the United States in March 1999 on a K I visa after my fiance at

the time, a United States citizen, submitted a petition on my behalf. I became a United States

citizen in December 2003 .

5. I have no other family living in the United States. Both my brother and I are Muslim by birth.

6. In December 2003, immediately after I became a United States citizen, petitioned for an F-4 immigrant visa on behalf of my brother. My brother is 34-years-old. He received his Bachelor's Degree from Azad University in Iran and has completed some coursework towards his Master's Degree in economics.

7. Six years later, we received a notification from the United States Citizenship and Immigration Service ("USCIS") that the petition had been approved and sent to the National Visa Center ("NYC") for further processing and scheduling of the immigrant visa interview.
8. My brother flew to Abu Dhabi for his scheduled visa interview on or about December I6, 2016. The petition was adjudicated and his visa was approved and issued on or about December 19, 2016. My brother's visa is set to expire on June 19, 2017.

9.

My brother was so excited about his visa and the opportunity to immigrate to the

United States that he sent me a picture of himself kissing the American flag t-shirt he had worn

to the visa interview. He immediately returned his rental apartment in Iran and began living with

a friend in preparation of moving to the United States.

10. I purchased a flight for my brother on Turkish Airlines for approximately $670.00

to depart on March 5, 20 17.

II. Harm Caused by the January 27, 2017 Executive Order:

2

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-

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-

...: ,

.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 145 of 227
II. On January 27, 2017, President Trump issued an Executive Order restricting the issuance of visa's to Iranian citizens, and preventing Iranian immigrants and nonimmigrants from entering the United States. Under the terms of the Executive Order, my brother and sisterin-law would be prevented from entering the United States.
12. I imm.ediately purchased a flight for my brother to depart immediately on an Etihad Airways flight departing Iran at approximately I :30 a.m. on or about January 28, 2017, the day following the signing of the executive order. I paid approximately $850.00 to purchase the flight, which had a layover in Abu Dhabi.
13. Upon arriving in Abu Dhabi, my brother and fellow visa holders and Green Card holders traveling to the United States were informed that they were the first group being detained under the terms of the newly issued EO. My brother and fellow passengers were escorted to a room where they were detained for over 19 hours. Their passports, visas, green cards, and "welcome packages" were confiscated.
14. Officials called each passenger one-by-one and showed them the text of the EO, and stated that their visa, passport, green card, and/or welcome package is being returned to them, but they will have to make travel arrangements to return back to Iran. They were also told to get in contact with the United States Embassy in about three months for any updates.
15. In sum, I have paid approximately $5,000.00 and spent hundreds of hours to secure the visa for my brother, whom I have not seen in over a year. My brother's experiences as a result of the January 27 Executive Order have caused me and my family great financial and emotional harm, which we will continue to suffer if my brother is unable to join me in the United States.

...

-- - -

-

3
- - -- -

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 146 of 227
I6. I have received no guidance, information, clarity, instruction, or correspondence from the United States government concerning the enforcement of the January 27 Executive Order and/or whether my brother will be prevented from leaving Iran or entering the United States.
17. I have called various airlines in an attempt to gather more information, to no avail. 18. I have been checking various internet websites and blogs every day since January 27, 2017 in an attempt to gather further information about the issuance of visas. I have also been in contact with the National Iranian American Council ("NIAC") to try to gather more information or clarification and have been receiving frequent emails from them containing information about the EO. 19. I have been very depressed since the passing of my mother last year, and the only thing I had to look forward to was being reunited with my only brother. As a direct result of the uncertainty caused by the EO, I have been extremely anxious, stressed, unable to sleep and eat, and nervous because I am unclear about whether I will remain separated from my brother. 20. My brother has told me that this experience has been as shocking and as painful for him as the death of our mother a year ago. 21. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my brother for participating in this action.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 147 of 227

I, Jane Doe #3 , declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this _i_ day of February, 20 I7, in Irvine. CA

Is/ Jane Doe #3 Jane Doe #3

5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 148 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 149 of 227
EXHIBIT 11
Dot.:ul1\4:nll

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 150 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.- - -

DECLARATION OF JANE DOE #4 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #4, hereby declare and state as
follows: I. I am over the age of eighteen years, and I have personal knowledge of the facts
set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:

2.

I currently reside in San Francisco, California. I am employed full time with an

architectural firm. 3. 1 am an Iranian citizen and was granted asylum in the United States in June 2016.
I am currently in the process of my Green Card. 1 am a member of the Erfran-e-Halgheh, also referred to as the Circle of Mysticism. 1 originally entered the United States with a student visa. I applied for asylum in the United States approximately three and a half years ago because I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 151 of 227
feared religious persecution in Iran. Members of my spiritual group have recently been killed by Iranian officials and I am unable to return to Iran.
4. I have lived in the United States since fleeing Iran in 2013. My parents still live in Iran and were planning to visit me this year. They have applied for tourist visas and were making travel arrangements. I was also planning to travel this year to Amsterdam to visit some friends who are currently living in Europe. My friends will be returning to Iran later this year, and when that happens I will be unable to see then because I cannot return to Iran. II. Harm Suffered Post January 27,2017 Executive Order:
5. On January 27, 2017, President Trump issued an Executive Order restricting the issuance of visas to Iranian citizens, and preventing Iranian immigrants and non immigrants from entering the United States. Under the terms of the Executive Order, I am no longer able to leave the United States because if I do I fear that I will not be allowed to return to the United States. I have been instructed by my immigration attorney not to travel outside of the United States because of the January 27 Executive Order.
6. The Executive Order has also forced my parents to cancel their plans to visit me in the United States. My parents will no longer be able to obtain a tourist visa and I will remain separated from my family.
7. I do not have any family in the United States; all of my family is in Iran. I am close to my family and the physical separation is very emotionally and mentally difficult for me.
8. I have received no guidance, information, clarity, instruction, or correspondence from the United States government concerning the enforcement of the January 27 Executive Order and/or whether the Executive Order will impact my pending application for a Green Card.
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 152 of 227
9. I am afraid that the State Department or other branches of the federal government will take retaliatory action against me for being a party to this action. I am especially concerned about retaliatory actions impacting my immigration status as I am still in the process for applying for my Green Card.

3

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 153 of 227
I, Jane Doe #4, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this__§__ day of February, 2017, in San Francisco. CA
Is! Jane Doe #4 Jane Doe #4
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 154 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 155 of 227
EXHIBIT 12
Document I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 156 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~d

)

)

)

Defendants.

)

Civil Action No.- - -

DECLARATION OF JANE DOE #5 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doc #5, hereby declare and state as follows:

1.

I am over the age of eighteen years, and I have personal knowledge of the facts

set forth herein or believe them to be true based on my experience or upon infonnation provided

to me by others. If asked to do so, I could testify truthfully about the matters contained herein.

I. Background:

2.

I am an Iranian citizen. My family and I are currently located in Turkey while we

await safe passage to the United States as refugees who have been accepted to the US

Government's Refugee Admissions Program. We cannot return to Iran. Approximately three

years ago my brother, sister, mother, and I fled Iran due to fears of political persecution. We

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 157 of 227
applied to be admitted to the United States as refugees and were approved by the U.S. Government to enter the United States under the admissions program.
3. The Jewish Family Services organization, an affiliate of HIAS, has made arrangements to assist my family and I upon our arrival in the United States and is helping us find a place to live in Seattle, Washington.
4. The International Organization for Migration (10M), which works with the U.S. Government to transport approved refugees to the United States, had provided me and my family members valid visas to enable us to travel to the United States. We were scheduled to fly form Turkey to Seattle, Washington on January 30, 2017. Our travel was not possible because of President Trump's January 27, 2017 Executive Order.
II. Harm Suffered Post January 27, 2017 Executive Order:
5. On January 27, 2017, President Trump signed an Executive Order (EO) preventing the entry oflranian visa holders as well as others into the United States.
6. As a result of the EO, my family and I were not allowed to fly to the United States on January 30, 2017. We are currently still stranded in Turkey. The 10M has booked a new flight for us to travel to the United States on Wednesday, February 8, 2017. I am hoping we can go. However, due to the uncertainty surrounding the status of the EO and its enforcement, my family and I fear that we will not be allowed to travel to the United States on February 8. We are greatly concerned that the travel ban for Iranian visa holders such as ourselves will be reinstated by this time, and thus we will remain stranded in Istanbul. We have been in contact with an attorney from the Iranian American Bar Association who is helping us to try and find an earlier flight.
1

--

. - - - - - -.

- .-

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-

~ -

..

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 158 of 227

7.

The EO has caused great turmoil and distress for me and my family. My family

members and I have been waiting years to be approved to enter the United States. We were

distraught and very upset to learn that our travel had been canceled as a result of the EO. It

shattered our hopes for starting our new life in the United States.

8.

My family and I have limited economic means and were counting on the ability to

soon be able to support ourselves by working in the United States. After we were unable to travel on January 30th, we were forced to stay with an acquaintance located about 6 hours outside of Istanbul and 3 hours outside of Ankara, and slept all four adults together in one room together. The IABA made arrangements for my family and I travel to Istanbul and stay in a hotel

while we await safe passage to the United States.

9.

I fear that the U.S. government will take retaliatory action against my family and I

for being a party to this action and that our involvement will negatively impact our status in the Refugee Admissions Program. I also fear that the Iranian government will learn about my

involvement in this legal action and retaliate against my father who is still in Iran.

3

7

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 159 of 227

I, Jane Doc #5, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.

Executed this _2_ day of February, 2017, in Istanbul. Turkey .

lsi Jane Doc #5 Jane Doe #5

4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 160 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 161 of 227
EXHIBIT 13
Ool:um~·ntl

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 162 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. el a/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendanls.

)

Civil Action No.·- - -

DECLARATION OF JANE DOE #6 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #6, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I an Iranian citizen. My family and I are currently located in Turkey while we await safe passage to the United States as refugees who have been accepted to the US Government's Refugee Admissions Program. We cannot return to Iran. Approximately three years ago my brother, sister, mother, and I fled Iran due to fears of political persecution. We

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 163 of 227

applied to be admitted to the United States as refugees and were approved by the U.S.

Government to enter the United States under the admissions program.

3. The Jewish Family Services organization, an affiliate of HIAS, has made

arrangements to assist my family and I upon our arrival in the United States and is helping us

find a place to live in Seattle, Washington.

4.

The International Organization for Migration (IOM), which works with the U.S.

Government to transport approved refugees to the United States, had provided me and my family

members valid visas to enable us to travel to the United States. We were scheduled to fly form

Turkey to Seattle, Washington on January 30, 2017. Our travel was not possible because of

President Trump's January 27,2017 Executive Order.

II. Harm Suffered Post January 27, 2017 Executive Order:

5. On January 27, 2017, President Trump signed an Executive Order (EO)

preventing the entry of Iranian visa holders as well as others into the United States.

6.

As a result of the EO, my family and I were not allowed to fly to the United States

on January 30, 2017. We are currently still stranded in Turkey. The IOM has booked a new

flight for us to travel to the United States on Wednesday, February 8, 2017. I am hoping we can

go. However, due to the uncertainty surrounding the status of the EO and its enforcement, my

family and I fear that we will not be allowed to travel to the United States on February 8. We are

greatly concerned that the travel ban for Iranian visa holders such as ourselves will be reinstated

by this time, and thus we will remain stranded in Istanbul. We have been in contact with an

attorney from the Iranian American Bar Association who is helping us to try and find an earlier

flight.

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 164 of 227

7.

The EO has caused great tunnoil and distress for me and my family. My family

members and I have been waiting years to be approved to enter the United States. We were

distraught and very upset to learn that our travel had been canceled as a result of the EO. It

shattered our hopes for starting our new life in the United States.

8.

My family and I have limited economic means and were counting on the ability to

soon be able to support ourselves by working in the United States. After we were unable to travel on January 30th, we were forced to stay with an acquaintance located about 6 hours outside of Istanbul and 3 hours outside of Ankara, and slept all four adults together in one room together. The IABA made arrangements for my family and I travel to Istanbul and stay in a hotel

while we await safe passage to the United States.

9.

I fear that the U.S. government will take retaliatory action against my family and I

for being a party to this action and that our involvement will negatively impact our status in the Refugee Admissions Program. I also fear that the Iranian government will learn about my

involvement in this legal action and retaliate against my father who is still in Iran.

. -··===·--- ~-

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 165 of 227 I, Jane Doc #6, declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge. Executed this ..1._ day of February, 2017, in Istanbul. Turkey .
Is/ Jane Doc #6 Jane Doc #6
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 166 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 167 of 227
EXHIBIT 14

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 168 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~d

)

)

)

Defendants.

)

Civil Action No.·- - -

DECLARATION OF JANE DOE #7 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #7, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I an Iranian citizen. My family and I are currently located in Turkey while we await safe passage to the United States as refugees who have been accepted to the US Government's Refugee Admissions Program. We cannot return to Iran. Approximately three years ago my son, two daughters, and I fled Iran due to fears of political persecution. We

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 169 of 227

applied to be admitted to the United States as refugees and were approved by the U.S.

Government to enter the United States under the admissions program.

3.

The Jewish Family Services organization, an affiliate of HIAS, has made

arrangements to assist my family and I upon our arrival in the United States and is helping us

find a place to live in Seattle, Washington.

4.

The International Organization for Migration (10M}, which works with the U.S .

Government to transport approved refugees to the United States, had provided me and my family

members valid visas to enable us to travel to the United States. We were scheduled to fly form

Turkey to Seattle, Washington on January 30, 2017. Our travel was not possible because of

President Trump's January 27, 2017 Executive Order.

II. Harm Suffered Post January 27, 2017 Executive Order:

5.

On January 27, 2017, President Trump signed an Executive Order (EO)

preventing the entry of Iranian visa holders as well as others into the United States.

6.

As a result of the EO, my family and I were not allowed to fly to the United States

on January 30, 2017. We are currently still stranded in Turkey. The IOM has booked a new

flight for us to travel to the United States on Wednesday, February 8, 2017. I am hoping we can

go. However, due to the uncertainty surrounding the status of the EO and its enforcement, my

family and I fear that we will not be allowed to travel to the United States on February 8. We are

greatly concerned that the travel ban for Iranian visa holders such as ourselves will be reinstated

by this time, and thus we will remain stranded in Istanbul. We have been in contact with an

attorney from the Iranian American Bar Association (IABA) who is helping us to try and find an

earlier flight.

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 170 of 227

7.

The EO has caused great turmoil and distress for me and my family. My family

members and I have been waiting years to be approved to enter the United States. We were

distraught and very upset to learn that our travel had been canceled as a result of the EO. It

shattered our hopes for staning our new life in the United States.

8.

My family and I have limited economic means and were counting on the ability to

soon be able to suppon ourselves by working in the United States. After we were unable to

travel on January 30th, we were forced to stay with an acquaintance located about 6 hours

outside of Istanbul and 3 hours outside of Ankara, and slept all four adults together in one room

together. The IABA made arrangements for my family and I travel to Istanbul and stay in a hotel

while we await safe passage to the United States.

9.

I fear that the U.S. government will take retaliatory action against my family and I

for being a pany to this action and that our involvement will negatively impact our status in the

Refugee Admissions Program. I also fear that the Iranian government will learn about my

involvement in this legal action and retaliate against my father who is still in Iran.

3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 171 of 227 I, Jane Doc #7, declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge. Executed this _.1_ day ofFcbruary, 20 17, in Istanbul. Turkey .
Is/ Jane Doe #7 Jane Doc #7
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 172 of 227

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-=-

-=-

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-

•

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•

•

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 173 of 227
EXHIBIT 15
l>ocumcnl1

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 174 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.- - -

DECLARATION OF JOHN DOE #l IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe# I, hereby declare and state as follows: I. I am over the age of eighteen years. I have personal knowledge of the facts set forth herein and am competent to testify thereto. I. Background:
2. I am an Iranian citizen. I first arrived in the United States on an F-1 student visa in 2015. My wife accompanied me on an F-2 visa for spouses of students.
3. I do not have any family in the United States. My entire family, as well as my wife's family, lives in Iran.
4. In September 2015, I started a PhD program in Finance and Economics at Columbia University in New York, NY. While the program is fonnally five years long, most candidates typically take six years to complete their PhDs. I am currently in the second year of my PhD program.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 175 of 227
5. My wife has a PhD in electrical engineering from the University of British Columbia in Vancouver, Canada. She has completed research on the newest generation of wireless communication systems and on energy harvesting and working toward more sustainable energy systems. She is a published author in the journal of the Institute of Electrical and Electronics Engineers {IEEE), the most prominent journal in the field ofelectrical engineering.
6. When we moved, my wife was planning to apply for a green card so that she could secure employment in her field in the United States. We paid $2,000.00 to retain an immigration attorney for the first phase of her green card application.
II. Harm Caused by the January 27,2017 Executive Order: 7. On or about December 24, 2016, my wife and I flew to Iran to visit our families. 8. On or about January 22, 2017, 1 flew back to the United States. My wife was planning to
join me later that week and had purchased a ticket for a January 28, 2017 Turkish Airlines flight from Esfahan, Iran to New York, NY. 9. On January 27, 2017, President Trump signed an Executive Order (EO) preventing the entry of Iranian visa holders as well as others into the United States. I0. My wife attempted to board her flight on January 28, but was prevented from boarding by Turkish Airlines, citing the EO. II. On or about January 30, 2017, my wife attempted to board a flight from Tehran, Iran to the United States, but was again turned away by the airline and not permitted to board. I2. In my opinion, it is very unlikely that the ban on entry will be lifted pursuant to its own terms as to individuals from Iran. The EO requires the Secretary of Homeland Security to produce a list of countries that "do not provide adequate information" to adjudicate visas
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 176 of 227
and other admissions. It is likely that Iran will be on that list, and very unlikely that Iran will comply with United States demands to provide more information. 13. As a direct consequence of the EO, I have been separated from my wife since January 22, 2017, and will continue to be separated for an indefinite period of time. I am faced with an inevitable decision of being separated from my wife, or withdrawing from my PhD program and flying back to Iran to be reunited with her. 14. If the EO continues to be enforced and my wife is prohibited from entering the country, I am planning to withdraw from my PhD program and fly back to Iran to be reunited with my wife in Iran. 15. Even if my wife were permitted to enter the United States on her F-2 visa, the EO makes it incredibly difficult, if not impossible, for her to secure a Green Card to work in the United States. My wife would, therefore, be relegated to staying at home rather than continuing her work and research. 16. I have not received any guidance, clarification, update, instruction, or information pertaining to the EO from the various airlines I have contacted, the United States government, or other authorities. 17. If I am forced to return to Iran I will likely be unable to complete my PhD studies and it will be very difficult for me to find employment. I protested against the Iranian government during the Green Movement after the 2009 Iranian presidential election. I was detained for four days while I was an undergraduate student. As a result of my political activity, I was permanently enjoined from studying in Iran by the Iranian
government.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 177 of 227
18. I have suffered great mental anguish and emotional distress as a result of my separation from my wife and the strong likelihood that I will have to abandon my studies.
19. I am joining this lawsuit as an anonymous plaintiff because various government agencies are named as Qefendants, and I am scared of retaliation and consequences against me and my wife if I reveal my identity.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 178 of 227 I, John Doe# I, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge.
Executed this ....1... day of February, 2017, in New York. NY
lsi John Doe #I John Doe #I
5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 179 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 180 of 227
EXHIBIT 16

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 181 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.- - -

DECLARATION OF JOHN DOE #2 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #2, hereby declare and state as follows: I. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am a dual citizen of Iran and the United States. 3. I work as a radiology technologist at lnova urgent care in northern Virginia. I also reside in northern Virginia.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 182 of 227

4.

My parents live in Iran. My father is a dual citizen of Iran and the United States

and my mother is a Green Card holder. My father is in very poor health. He is not able to travel

due to his poor health.

5.

One of my sisters lives in Tehran, Iran. She applied for a green card over eleven

years ago and is waiting for it to be approved.

6.

My mother in law and father in law, who are Iranian citizens, completed an

immigrant visa interview in Ankara, Turkey and subsequently received immigrant visas to come

to the United States in December 2016.

7.

They were planning to move to the United States in March 2017. They are fifty-

nine and sixty-nine years old, respectively.

II. Harm Suffered Post January 27,2017 Executive Order:

8.

I learned that on January 27, 2017 President Trump had signed an Executive

Order (EO) preventing the entry of Iranian visa holders as well as others into the United States.

9.

I immediately called my mother and father in law and advised them to purchase

tickets for and board a flight to the United States. 10. On January 28, 2017, my father and mother in law boarded a flight from Tehran

to the United States, with a layover in Amsterdam, the Netherlands. II . Upon arrival in Amsterdam, my father and mother in law were prevented from

boarding their connecting flight to the United States by KLM Airlines staff. 12. My mother and father in law attempted to and were prohibited from boarding
subsequent flights to the United States. They slept in the airport in Amsterdam for four nights. 13. At the Amsterdam airport, my mother in law and father in law were put into
contact with the staff of the Iranian American Bar Association (IABA). The staff, as well as

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 183 of 227
other individuals my parents met at the airport, helped them in multiple ways - for example, by calling a Senator in Maryland and a Senator in Virginia on their behalf.
14. After four days, my parents were able to board a flight to the United States. They landed in Dulles on February 2, 2017.
15. Because they are visa holders, my parents will not be able to travel back to Iran if the EO continues to be enforced. They will not be able to tend to business matters that they left unfinished when they were forced to drop everything and fly to the United States.
16. In addition, due to the EO, my sister's Green Card application is likely on hold indefinitely or has already been denied and she will be unable to move to the United States.
17. If my mother becomes a widow in the future, I was hoping she could move to the United States to live with me. I am concerned that my mother will not be able to move to the United States due to the EO.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 184 of 227
I, John Doe #2, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this....§.__ day of February, 2017, in Sterling. VA .
Is/ John Doe #2 John Doe #2

4

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Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 185 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 186 of 227
EXHIBIT 17

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 187 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President ofthe United States, )

~~

)

)

)

Defendants.

)

Civil Action No.._ __

DECLARATION OF JOHN DOE #3 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #3, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon infonnation provided to me by others. If asked to do so. I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen. My immediate family lives in Iran. 3. My wife is an Iranian citizen. 4. We currently live in Tehran, Iran. 5. My wife and I are practicing Muslims.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 188 of 227

6.

I hold a PhD in Pharmacology as well as a Doctorate of Phannacy from a leading

university in Iran. I graduated at the top of my class in each program.

7. I am currently a resident of Pharmacology at a university in Tehran, Iran.

8. I have published extensively in the field of pharmacology. Since 2007, I have

been lead author or coauthor on over 40 articles in leading scientific journals.

9. This past year, I was awarded a fellowship by my university to study at a top-

ranked hospital in Boston, Massachusetts. The fellowship has a term of three years. The

fellowship had a start date of December I, 20 I6.

I0. The fellowship allows me to conduct research on diabetes effects on the heart in

the lab of a professor of medicine and biochemistry at an ivy league medical school and a senior

physician in cardiovascular medicine at the hospital. II. In connection with my fellowship, I petitioned for a J-1 visa. I petitioned for a J-2

visa for my wife at the same time. 12. My wife and I had a visa interview on October 12, 2016 in the U.S. Consulate in

Dubai. 13. Subsequent to the interview, I received an email instructing me to bring my
passport to the U.S. Consulate in Dubai in order for my J-1 visa to be issued.
14. At that time, my wife's email was still under administrative processing. As a result, I successfully petitioned to have the start date of my fellowship changed to February

2017.

2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 189 of 227
II. Harm Suffered Post January 27,2017 Executive Order:
15. I learned from news reports that on January 27,2017, President Trump signed an Executive Order (EO) preventing the entry of Iranian visa holders as well as others into the United States.
I6. I travelled to the U.S. Consulate in Dubai on February I, 2017, in order to get the J-1 visa placed into my passport.
17. When I arrived at the Consulate in Dubai, the Consulate officials told me that they were prohibited from issuing my visa due to the EO. They instructed me that I had to go back to Tehran.
18. I travelled back to Tehran from Dubai. My wife and I are still in Tehran. 19. At present, the EO makes it impossible for me to travel to the United States. If I am unable to travel to the United States, I will be unable to participate in my fellowship at the hospital. 20. The EO has completely upended my career plans, as well as my family's plans to move to the United States. 21. I am in close contact with the physician who runs the lab in which I was planning to work. We exchange emails on a daily basis with updates on my situation and the EO. 22. I have learned from the physician that they would have great difficulty finding a suitable replacement on short notice. In fact, he told me that he is very eager for me to join them and will consider it a great loss to his lab if I am not able to do so. 23. I am choosing to participate in this action anonymously because I am afraid of what the U.S. government may do if I join this lawsuit as a named plaintiff, especially if this lawsuit is not successful in overturning the EO. I fear that the U.S. government may retaliate
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 190 of 227
against me by continuing to deny issuance of my visa, and/or failing to grant future visas for me and my wife if they find out that I have publicly opposed the EO.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 191 of 227

I, John Doe #3, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.

Executed this _l_ day of February, 2017, in Tehran. Iran

/s/ John Doe #3 John Doe #3

5

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 192 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 193 of 227
EXHIBIT 18
Oocumcn\1

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 194 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. el a/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF JOHN DOE #4 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #4, hereby declare and state as follows: I. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen. My family and I are currently located in Turkey while we await safe passage to the United States as refugees who have been accepted to the US Government's Refugee Admissions Progmm. We cannot return to Iran. Approximately three years ago my two sisters, mother, and I fled Iran due to fears of political persecution. We applied

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 195 of 227
to be admitted to the United States as refugees and were approved by the U.S. Government to enter the United States under the admissions program.
3. The Jewish Family Services organization, an affiliate of HIAS, has made arrangements to assist my family and I upon our arrival in the United States and is helping us find a place to live in Seattle, Washington.
4. The International Organization for Migration (10M), which works with the U.S. Government to transport approved refugees to the United States, had provided me and my family members valid visas to enable us to travel to the United States. We were scheduled to fly form Turkey to Seattle, Washington on January 30, 2017. Our travel was not possible because of President Trump's January 27,2017 Executive Order.
II. Harm Suffered Post January 27, 2017 Executive Order:
5. On January 27, 2017, President Trump signed an Executive Order (EO) preventing the entry oflranian visa holders as well as others into the United States.
6. As a result of the EO, my family and I were not allowed to fly to the United States on January 30, 2017. We are currently still stranded in Turkey. The 10M has booked a new flight for us to travel to the United States on Wednesday, February 8, 2017. I am hoping we can
go. However, due to the uncertainty surrounding the status of the EO and its enforcement, my family and I fear that we will not be allowed to travel to the United States on February 8. We are greatly concerned that the travel ban for Iranian visa holders such as ourselves will be reinstated by this time, and thus we will remain stranded in Istanbul. We have been in contact with an attorney from the Iranian American Bar Association who is helping us to try and find an earlier flight.
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 196 of 227
7. The EO has caused great tunnoil and distress for me and my family. My family members and I have been waiting years to be approved to enter the United States. We were distraught and very upset to learn that our travel had been canceled as a result of the EO. It shattered our hopes for starting our new life in the United States.
8. My family and I have limited economic means and were counting on the ability to soon be able to support ourselves by working in the United States. After we were unable to travel on January 30th, we were forced to stay with an acquaintance located about 6 hours outside of Istanbul and 3 hours outside of Ankara, and slept all four adults together in one room together. The IABA made arrangements for my family and I travel to Istanbul and stay in a hotel while we await safe passage to the United States.
9. I fear that the U.S. government will take retaliatory action against my family and I for being a party to this action and that our involvement will negatively impact our status in the Refugee Admissions Program. I also fear that the Iranian government will learn about my involvement in this legal action and retaliate against my father who is still in Iran.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 197 of 227

I, John Doe #4, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.

Executed this _l_ day of February, 2017, in Istanbul. Turkey

Is/ John Doe #4 John Doe #4

4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 198 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 199 of 227
EXHIBIT 19
l'>ocumflnt I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 200 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.·- - -

DECLARATION OF JOHN DOE #5, ON BEHALF OF HIMSELF AND HIS MINOR CHILD BABY DOE #1, IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #5, on behalf of himself and his minor child Baby Doe # 1, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 2. My son is Baby Doe#1. He is a minor approximately 6 months old.
I. Background:
3. I am an Iranian citizen. I entered to United States in September 2009 on an F-1 student visa. I have been studying and working in the United States since then. I received a Masters Degree in mechanical engineering in 2012 from the University of Buffalo in New York, and in 2015 I received my PhD in mechanical engineering from the University of Buffalo. I am

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 201 of 227
currently working as a post-doctoral fellow with the SUNY Research Foundation. After entering the United States on an F-1 visa in 2009, I returned to Iran two times. Once in 2012 because I had a family emergency, and again in 2013 to be married to my wife. Both times I applied for and received a valid F-1 visa to return to the United States. I was interviewed and had to pass a lengthy security clearance all three times I applied for an F-1 student visa.
4. I live with my wife and our infant son, Baby Doe #1, in New York. After we were married in 2013, my wife traveled with me to the U.S. with a valid F-2 visa, which is available for dependents of F-1 visas.
5. My son was born in the United States in August 2016. He has both a United States and Iranian passport.
6. On January 4, 2017, my wife and son traveled to Iran to introduce my son to our family in Iran. Most of my family is in Iran and my parents and in-laws in particular were very excited to meet my son, as he is currently their only grandchild. My wife and son were planning to stay in Iran for several months so that everyone in our families could meet my son. I purchased a plane ticket for my wife and son to fly back to the United States on or about April 4, 2017.
7. Before my wife left for Iran, we scheduled an appointment at the U.S. consulate in Dubai on January 17, 2017 for my wife to apply for a new F-2 visa. My wife had to travel from Tehran to Dubai for the interview and was unable to take our son on her journey to Dubai. My wife was interviewed at the U.S. consulate and provided all the necessary documentation. The U.S. consulate approved her F-2 visa request that same day, January 17, 2017. My wife left Dubai immediately after her interview because she needed to return to our son in Iran.
..,

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 202 of 227
II. Harm Suffered Post January 27, 2017 Executive Order:
8. After an F-2 visa is approved by the U.S. consulate, it takes several days to process the paperwork and issue the F-2 visa. On January 26, 2017, at approximately 2:00a.m., I received an email from the U.S. consulate stating that my wife's F-2 visa was ready to be issued and asking my wife to bring her passport to the U.S. consulate. Shortly afterwards, my wife made arrangements for an agency in Iran to take her passport to the U.S. consulate and issue her F-2 visa. Agencies like this arc very common in Iran and are often used by individuals like my wife, who are unable to stay in Dubai while consulate takes several days to issue the visa after it is approved. These agencies typically take about 4 to 5 days to travel to Dubai, receive the visa, and return the passport.
9. On January 27, 2017, President Trump signed an Executive Order (EO) preventing the entry of Iranian visa holders and others into the United States.
10. Because of the EO, the U.S. consulate refused to issue the F-2 visa to my wife, even though the visa had already been approved. The agency that my wife hired to take her passport to Dubai returned her passport without the visa.
11. My wife and I continued to try and contact the U.S. consulate to find out how it refused to issue her visa and how my wife could obtain her visa. After a federal district judge in Washington temporarily restrained enforcement of the EO, my wife contacted the U.S . consulate on February 4, 2017, seeking clarification about the status of her F-2 visa. My wife explained that her F-2 visa was approved but has not yet been issued. The U.S. consulate infonned by wife that she may send her passport again and that the U.S. consulate will issue it this time. My wife and I arc very concerned that the situation will change by the time her passport reaches the U.S.
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 203 of 227
consulate in Dubai. We fear that the EO will be reinstated and that the U.S. consulate will once again refuse to issue my wife's F-2 visa.
12. More importantly, as a result of the EO, my wife an infant son may no longer be allowed to return to the United States on April4, 2017. My son is too young to travel on his own and my wife may not be able to enter the United States even if she obtains the F-2 visa from the consulate. We are very concerned about my son's health. Because he is so young, he is still completing his vaccinations. He is currently scheduled to receive his third round of vaccines in the beginning of April. It is not possible for him to receive the vaccines- be must return to the United States to do so.
13. Moreover, the EO prevents me, an Iranian citizen with legal status to live and work in the United States, from going to Iran to collect my son and bring him home. Under the terms of the EO, if I leave Iran now, I run a substantial risk of not being allowed to return to the United States either because I would be unable to obtain another F-1 visa or because I would be unable to board a flight even if I had a valid F-1 visa. I also risk losing my job in the United States if I travel to Iran now to be with my wife and son.
14. I fear that U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned about retaliation against my wife, who is in a very precarious situation because her visa has been approved but not yet issued by the U.S. consulate.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 204 of 227
I, John Doc #5, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this_]__ day of February, 2017, in Amherst. NY lsi John Doe #5
John Doe #5, on behalf of himself and his minor child, Baby Doe # 1

I

.

5
-
I

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 205 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 206 of 227
EXHIBIT 20
Oocurn~nll

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 207 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. eta/,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF JOHN DOE #6 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #6, hereby declare and state as

follows:

I.

I am over the age of eighteen years, and I have personal knowledge of the facts

set forth herein or believe them to be true based on my experience or upon information provided

to me by others. If asked to do so, I could testify truthfully about the matters contained herein.

I. Background:
2. I am an Iranian citizen. I live in Malaysia with my wife, four-year-old son, and eight-year-old son. I work in the oil and gas industry as a directional driller. For many years I worked for one of the largest American oil and gas drilling companies. Before I was hired I had to complete an extensive background check. I have to travel a lot for work. I am currently located on an off-shore oil rig approximately 6 hours from the Southern coast of Iran.

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 208 of 227

3. My family and I won the Green Card lottery. We were so excited to finally be able to move to the United States and we made arrangements to settle down in Tampa Bay, Florida, where we have close friends who arc like family.
4. On or about January 26, 2017, my family received our visas to travel to the United States. We booked flights to the United States for January 29, 2017, the earliest flight we were able to get. Our visas arc set to expire in July 2017.
II. Harm Suffered Post January 27, 2017 Executive Order:
5. On January 27, 2017, President Trump signed an Executive Order (EO) preventing the entry of Iranian visa holders and others into the United States.
6. As a result of the EO, my family and I cancelled our January 29, 2017 flight to the United States. We learned that because of the EO Iranian citizens were not being allowed to board planes, even if they had a valid visa. My wife and I were also concerned that we would be stranded with our two young children or detained in an airport.
7. I emailed the U.S. embassy in Malaysia after the EO was signed and the embassy replied that my family and I could not travel to the United States. It is our understanding that so long as the EO remains in effect we will be unable to enter the United States.
8. I work in the oil and gas industry and was laid off in 2015 after the price of oil decreased dramatically. While I was able to find a new job, the oil industry is still a bit unstable and I remain concerned about being able to provide for my family. I decided that it would be best for me to continue working after the EO prevented my family and I from flying to the United States on January 29, 2017. I work on offshore oil rigs and I was sent to a rig about 6 hours off the coast of Southern Iran. A few days later, I learned that the travel ban in the EO had been temporarily stayed due to the emergency ruling of a federal court in the United States, and thus
2

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- ::" ·...

-

. ·-·

. . ~ . .: ,;;.

-·

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 209 of 227
Iranian citizens with valid visas were being allowed to enter the United States. I quit my job as soon as I found out but because of the nature of my work I am not able to immediately leave the oil rig. I have to wait for a replacement, which takes time since we arc located so far offshore and usually work in approximately four-week rotations.
9. My family is waiting for me to travel to the United States. When my wife was studying in Canada, my son and I were unable to join her and the separation was very difficult. We are very afraid that if my wife and sons travel to the United States without me that we will be separated again. My wife and sons will fly from Malaysia to Iran once I am able to leave the oil rig. As soon as my replacement arrives, I intend to travel to Iran to meet my wife and sons and if possible we will all board the next available flight to the United States.
10. My family and I are very concerned that the EO will go back into enforcement and will once again prevent us from traveling to the United States. I have been unable to sleep or eat because I am so anxious and worried. My family and I felt so lucky to win the Green Card lottery and were looking forward to settling down in Florida. We have already packed everything and sold most of our possessions in Malaysia in preparation to move the United States. We will be devastated if we miss our opportunity to go the United States and instead will have to stay in Malaysia or I will have to find another job elsewhere. There are more opportunities in the United States for my line of work and I would like to be able to work closer to where my family lives.
11. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that the U.S. government will revoke our visas and not allow us to obtain our Green Cards because of my involvement.
3
li;;;;;;;;;~i;;;;;;; _ _ _ - - - - - - -

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 210 of 227

I, John Doe #6, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.

Executed this _1._ day of february, 2017, in Tehran. Iran

Is/ John Doc #6 John Doc #6

4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 211 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 212 of 227
EXHIBIT 21

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 213 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equal.ity Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance Of Iranian Americans, )

Inc. eta/.,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~~

)

)

)

Defendants.

)

Civil Action No.- - -

DECLARATION OF JOHN DOE #7 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #7, hereby declare and state as
follows : I. I am over the age of eighteen years, and I have personal knowledge of the facts
set forth herein or believe them to be true based on my experience or upon infonnation provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.

I. Background:
2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to the United States as a refugee.
3. I have been in a loving committed relationship with my partner, John Doe# 8, for many years. My partner and I were both bom and raised in Iran. Both of us also grew up in

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 214 of 227
Muslim households. The Muslim community in Iran has not been accepting of our sexual orientation.
4. My partner and I lived together in Iran for eight years. Because of this, we experienced harassment from the Iranian people. Most or all of this harassment stemmed from religious intolerance for same·sex couples in Iran. Our neighbors were suspicious of us because we were two men living together. On several occasions our neighbors reported us to the Iranian police. We lived in constant fear that we would be taken by government officials, who tolerate and even encourage violence against same-sex couples in Iran. I have heard of homosexual men being arrested and beaten in Iranian prisons. We stopped answering the door because we were very afraid of the police coming to arrest us. The harassment also made us feel unwanted in Iran. We were forced to move at least three different times because either landlord or the neighbors complained. The harassment was so strong that we constantly feared for our safety and were forced to flee Iran.
5. My partner and I have been living in exile in Turkey for approximately 27 months. Our life in Turkey has been very difficult. We live in a small town where many people do not accept our relationship and we live in fear of violence against us. In this atmosphere, we are constantly afraid for our safety. Both my partner and I worked full time when we lived in Iran. We are not allowed to work in Turkey.
6. My partner is very ill. He was diagnosed with colitis and he experiences a lot of physical pain. Our sub-standard living conditions worsen his health conditions. We need to go to a country where he can recover and we can get adequate medical care.
7. My partner and I are in a terrible situation. Because of our sexual orientation, we were unsafe in Iran and are unsafe in Turkey. We have applied for refugee status and would like
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 215 of 227

to be resettled to the United States where we will be safe from persecution and where my partner can receive treatment for his medical condition. We reached out to the Office of the UN High Commissioner for Refugees (UNHCR) after we arrived in Turkey and told them we wished to be referred to the U.S. Refugee Admissions Program. After a lengthy interview and vetting process, UNHCR agreed to our application for refugee status, gave us documentation of that approval, and referred us to the U.S. Refugee Admissions Program. We are now waiting for the decision of the United States on acceptance to the program. We know that the United States Refugee Admissions Program has admitted to the program many same-sex applicants and are waiting to be processed. It has been approximately 120 days since we received the certificates from the UN . and referral to the US admissions program.

II. Harm Suffered Post January 27,2017 Executive Order:

8. I am aware that, on January 27, 2017, President Trump signed an Executive Order

(EO) that impacts the refugee admissions process for citizens from certain countries, including

Iran. 9.

My partner and I check the website icmc.net, a website referred to us by the

United Nations, nearly every day to keep track of our status in the U.S. refugee admissions

process. After the EO was signed, the website posted a notice informing us that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the

United States due to the EO.

10. The EO has caused us great distress. My partner and I are very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions

Program.

3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 216 of 227
II. Since the EO was issued my partner's health has severely worsened. He is not able to obtain the medical care needed where we live now. I also fear that his heath will continue to decline because we are experiencing so much anxiety and uncertainty surrounding the EO and its impact on our refugee applications.
12. My partner and I fear that U.S. government will retaliate against us because of our involvement in this lawsuit. We are concerned that our involvement will impact our acceptance in the Refugee Admission Program and hann our chances to be approved by the United States. We also fear persecution from the Iranian government if it were to become aware of our application for refugee status in the United States, or our involvement in this lawsuit.
4

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 217 of 227
I, John Doe #7, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 8th day of February, 2017, in Denizli, Turkey.
Is! John Doe #7 John Doe #7

5

.

-~ .· - "". =

-

~ ;,• ~

·..

-

I -

---

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 218 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 219 of 227
EXHIBIT22

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 220 of 227

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance Of Iranian Americans, )

Inc. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

~d

)

)

)

Defendants.

)

- - - Civil Action No.

DECLARATION OF JOHN DOE #8 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #8, hereby declare and state as follows: I. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to the United States as a refugee.
3. I have been in a loving committed relationship with my partner, John Doe# 7, for many years. My partner and I were both born and raised in Iran. Both of us also grew up in

··-- ··----

·~-;. _____

-.-- -

-

.

'

-

-----

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 221 of 227
Muslim households. The Muslim community in Iran has not been accepting of our sexual orientation.
4. My partner and I lived together in Iran for eight years. Because of this, we experienced harassment from the Iranian people. Most or all of this harassment stemmed from religious intolerance for same-sex couples in Iran. Our neighbors were suspicious of us because we were two men living together. On several occasions our neighbors reported us to the Iranian police. We lived in constant fear that we would be taken by government officials, who tolerate and even encourage violence against same-sex couples in Iran. I have heard of homosexual men .being arrested and beaten in Iranian prisons. We stopped answering the door because we were very afraid of the pol ice coming to arrest us. The harassment also made us feel unwanted in Iran. We were forced to move at least three different times because either landlord or the neighbors complained. The harassment was so strong that we constantly feared for our safety and were forced to flee Iran.
5. My partner and I have been living in exile in Turkey for approximately 27 months. Our life in Turkey has been very difficult. We live in a small town where many people do not accept our relationship and we live in fear of violence against us. In this atmosphere, we are constantly afraid for our safety. It has been very difficult for us to find employment.
6. I am very ill. I was diagnosed with colitis and experience a lot of physical pain. Our sub-standard living conditions worsen my health conditions. We need to go to a country where I can recover and get adequate medical care.
7. My partner and I are in a terrible situation. Because of our sexual orientation, we were unsafe in Iran and are unsafe in Turkey. We have applied for refugee status and would like to be resettled to the United States where we will be safe from persecution and where I can
2

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 222 of 227
receive treatment for my medical condition. We reached out to the Office of the UN High Commissioner for Refugees (UNHCR) after we arrived in Turkey and told them we wished to be referred to the U.S. Refugee Admissions Program. After a lengthy interview and vetting process, UNHCR agreed to our application for refugee status, gave us documentation of that approval, and referred us to the U.S. Refugee Admissions Program. We are now waiting for the decision of the United States on acceptance to the program. We know that the United States Refugee Admissions Program has admitted to the program many same-sex applicants and are waiting to be processed. It has been approximately 120 days since we received the certificates from the UN and referral to the US admissions program. II. Harm Suffered Post January 27, 2017 Executive Order:
8. I am aware that, on January 27, 2017, President Trump signed an Executive Order (EO) that impacts the refugee admissions process for citizens from certain countries, including Iran.
9. My partner and I check the website icmc.net nearly every day to keep track of our status in the U.S. refugee admissions process. After the EO was signed, the website posted a notice informing us that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the United States due to the EO.
I0. The EO has caused us great distress. My partner and I are very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions Program.
II . Since the EO was issued my health has severely worsened. I am unable to obtain the medical care needed where we live now. The anxiety and uncertainty surrounding the EO
3

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 223 of 227
and its impact on our refugee applications has also caused my health to worsen because of the additional stress.
12. My partner and I fear that U.S. government will retaliate against us because of our involvement in this lawsuit. We are concerned that our involvement will impact our acceptance in the Refugee Admission Program and hann our chances to be approved by the United States. We also fear persecution from the Iranian government if it were to become aware of our application for refugee status in the United States, or our involvement in this lawsuit.

4

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-

.

..

..

.. -

--· __ - .. - ~-. --. .... - ,._,._ ,.........

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 224 of 227
I, John Doe #8, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 8th day of February, 2017, in Denizli, Turkey.
lsi John Doe #8 John Doe #8

5

-----

--

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 225 of 227

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 226 of 227

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER et al., Plaintiffs,
v.
DONALD J. TRUMPet al., Defendants.

Civil Action No. 17-cv-255

PROPOSED ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
The Court, having considered Plaintiffs' Motion for Preliminary Injunction ("Motion") and any opposition thereto, and finding that good cause appears, orders as follows:
The Motion is hereby GRANTED. Defendants are hereby preliminarily restrained and enjoined from:
(a) enforcing§§ 3(c), 5(a), S(b), 5(c), and 5(e) of Executive Order No. 13,769, "Protecting the Nation from Foreign Terrorist Entry into the United States," including at any United States border or point ofentry;
(b) applying§§ 3(c), S(a), S(b), S(c), or S(e) of the Executive Order to deny, revoke, restrict or cancel any immigrant or nonimmigrant visa;
(c) applying§§ 3(c), S(a), S(b), S(c), or S(e) of the Executive Order to deny or suspend entry or admission to any person;
(d) applying§§ 3(c), 5(a), S(b), S(c), or 5(e) of the Executive Order to prohibit any person from applying for any benefit under the Immigration and Nationality Act of 1965;

-=- ---

---

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- '•• . ::

--~

Case 1:17-cv-00255-TSC Document 9 Filed 02/08/17 Page 227 of 227

(e) denying any person subject to the Executive Order access to legal counsel of his or her choice;
(t) applying Sections§§ 3(c), 5(a), 5(b), 5(c), or 5(e) of the Executive Order to instruct any airline or other common carrier to deny passage to any person;
(g) imposing or threatening to impose any financial penalty on any airline or other common carrier for allowing passage to any person covered by §§ 3(c), 5(a), 5(b), 5(c), or S(e) of the Executive Order.

IT IS SO ORDERED.

Dated: February _ , 2017

U.S. DISTRICT JUDGE

 
 Case 1:17-cv-00255-TSC Document 16 Filed 02/16/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PARS EQUALITY CENTER, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 1:17-cv-00255-TSC

)

DONALD J. TRUMP, in his official

)

capacity as President of the

)

United States, et al.,

)

)

Defendants.

)

____________________________________)

EMERGENCY MOTION FOR STAY OF EXISTING DEADLINES PENDING ISSUANCE OF A NEW EXECUTIVE ORDER

Plaintiffs challenge an Executive Order that is currently subject to a nationwide injunction

and that the President intends to rescind and then replace with a new, substantially revised

Executive Order. Accordingly, there is no need to move forward with the pending deadlines

related to Plaintiffs’ efforts to preliminarily enjoin the existing Executive Order. Defendants

submit this emergency motion to respectfully request that the existing deadlines regarding

Plaintiffs’ motion for a preliminary injunction—including Defendants’ opposition brief due

tomorrow, February 17—be stayed pending the President’s issuance of a new Executive Order. In

the alternative, Defendants respectfully request a one-week extension of the deadline for their

opposition brief, until February 24, 2017. The reasons supporting these requests are set forth

below, and a proposed order is attached.

Pursuant to Local Civil Rule 7(m), counsel for Defendants conferred with counsel for

Plaintiffs, who requested that their position be stated as follows: “Defendants notified Plaintiffs

of their ‘emergency’ request for a stay at 2:02 p.m. today -- the day before Defendants’ response

-1-

Case 1:17-cv-00255-TSC Document 16 Filed 02/16/17 Page 2 of 8
to the preliminary injunction motion is due -- and indicated an intent to file their motion at 4:00 p.m. Plaintiffs’ counsel are unable to consult with their clients regarding their position on a stay motion in this short time.”
Background On January 27, 2017, the President issued an Executive Order titled “Protecting The Nation From Foreign Terrorist Entry Into The United States.” See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). In the Western District of Washington, the State of Washington—later joined by the State of Minnesota—challenged the Executive Order, filing suit on January 30, 2017, and seeking a temporary restraining order that same day. See Washington v. Trump, Case No. 2:17-cv-141-JLR (W.D. Wash.). On February 3, 2017, the court in that case enjoined, on a nationwide basis, enforcement of Sections 3(c), 5(a)-(c), and 5(e) of the Executive Order—the same sections challenged by Plaintiffs in this case. Compare Wash. v. Trump (W.D. Wash.), ECF No. 52; with ECF No. 9 at 226-27 (Plaintiffs’ proposed order). The district court’s injunctive order did not contain an expiration date. The next day—February 4, 2017—the Government filed a notice of appeal of the nationwide injunction to the United States Court of Appeals for the Ninth Circuit. See Wash. v. Trump (W.D. Wash.), ECF No. 53; see also Washington v. Trump, Case No. 17-35105 (9th Cir.). Later that day the Government filed an emergency motion to stay the district court’s order. See Wash. v. Trump (9th Cir.), ECF No. 14. The Ninth Circuit rejected the Government’s request for an immediate administrative stay, and set an expedited briefing schedule on the stay request. Wash. v. Trump (9th Cir.), ECF No. 15. After briefing and argument, a panel of the Ninth Circuit denied the Government’s emergency motion for a stay of the nationwide injunction. See Wash. v. Trump, --- F.3d ----, 2017 WL 526497 (9th Cir. Feb. 9, 2017). The Western District of Washington
-2-

Case 1:17-cv-00255-TSC Document 16 Filed 02/16/17 Page 3 of 8
has since concluded that, based on the Ninth Circuit panel’s ruling, the temporary restraining order should be construed as a preliminary injunction. See Wash. v. Trump (W.D. Wash.), ECF No. 78 at 4.
While those proceedings were ongoing—and while the nationwide injunction was in effect—Plaintiffs here filed their Complaint also challenging the Executive Order. See ECF No. 3. Plaintiffs filed their Complaint on February 8, 2017, and that same day moved for a preliminary injunction. See ECF No. 9. Plaintiffs likewise sought a nationwide injunction prohibiting enforcement of Sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. See id. at 226-27.
The Court directed the parties to confer regarding a briefing schedule and hearing date for Plaintiffs’ motion for preliminary injunction, and subsequently entered the following briefing schedule: “Defendants’ Response to [9] Plaintiffs’ Motion for Preliminary Injunction due 2/17/2017. Plaintiffs’ Reply due 2/22/2017. A hearing is hereby set for 2/28/2017 at 10:30 a.m.” Minute Order of Feb. 13, 2017.
In the meantime, in the Ninth Circuit litigation, the Court issued an order on February 10, 2017, notifying the parties that “[a] judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” Wash. v. Trump (9th Cir.), ECF No. 139. The Chief Judge directed the parties “to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc.” Id. The deadline for filing those briefs was 11am PST on Thursday, February 16, 2017. See id.
The United States has now filed its supplemental brief before the Ninth Circuit. The United States’ filing discusses the numerous flaws in the Ninth Circuit panel’s opinion, but nonetheless states:
-3-

Case 1:17-cv-00255-TSC Document 16 Filed 02/16/17 Page 4 of 8
[T]he United States does not seek en banc review of the merits of the panel’s ruling. Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns. . . . In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation. Under the unusual circumstances presented here—including the extraordinarily expedited proceedings and limited briefing to the panel, the complexity and constitutional magnitude of the issues, the Court’s sua sponte consideration of rehearing en banc, and respect for the President’s constitutional responsibilities—the government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision. Wash v. Trump (9th Cir.), ECF No. 154 at 4; see also id. at 46 (“In light of the forthcoming
promulgation of a new superseding Executive Order . . . [en banc] review is not called for at this
time.”). In light of these new developments—i.e., the Western District of Washington’s treatment
of its order as a preliminary injunction, the upcoming rescission of the Executive Order that is the
subject of this lawsuit, and the President’s intent to issue a new Executive Order—the Government
hereby moves to stay the pending deadlines pertaining to Plaintiffs’ motion for a preliminary
injunction pending issuance of the new Executive Order.
Discussion
“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 (modifications and citation omitted). Here,
there are ample reasons for a stay of the proceedings on Plaintiffs’ motion for preliminary
injunction.
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1. In light of the President’s intent to rescind the existing, currently enjoined Executive Order—the sole subject of this lawsuit—and replace it with a new, substantially revised version, there is no purpose served by the parties moving forward pursuant to the current deadlines in this case. It would be a significant waste of the parties’ and the Court’s resources to require briefing and consideration of the legality of Executive Order No. 13,769 when the challenged portions are not presently operative and the President has already determined that he will rescind that Order and replace it with a new one. And moving forward with such a challenge—asking this Court to rule on the constitutionality of an action taken by a coordinate branch of Government, even after the President has decided to rescind that action—would be contrary to the principle that courts should “avoid the premature adjudication of constitutional issues.” Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1020 (D.C. Cir. 1991).
2. A stay of the existing deadlines would cause no harm to Plaintiffs. As discussed above, the Executive Order is currently enjoined on a nationwide basis. The Western District of Washington’s injunction covers the same five sections of the Executive Order that Plaintiffs here seek to enjoin. Compare Wash. v. Trump (W.D. Wash.), ECF No. 52; with ECF No. 9 at 226-27 (Plaintiffs’ proposed order). Thus, the Western District of Washington has, in effect, provided Plaintiffs with the full relief they seek from this Court pursuant to their motion for a preliminary injunction.
Although the United States believes the Western District of Washington injunction was erroneous, the United States is not asking the Ninth Circuit to review en banc the merits of the stay panel’s opinion; instead the United States has requested that the Court “hold the case until the new Executive Order is issued, at which point it should vacate the panel’s opinion.” Wash. v. Trump (9th Cir.), ECF No. 154 at 4. The nationwide injunction of the existing Executive Order will
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therefore remain in effect at least until the Ninth Circuit rules, which eliminates any prejudice to Plaintiffs in postponing further proceedings until after the new Executive Order is issued. Cf. Hawaiʻi v. Trump, No. 17-cv-50, 2017 WL 536826, at *3-4 (D. Haw. Feb. 9, 2017) (staying a challenge to the Executive Order, and noting that the plaintiffs had not demonstrated any injury from the requested stay because “no such damage can occur while the Western District of Washington TRO remains in place”).
The upcoming rescission of the existing Executive Order makes clear that Plaintiffs cannot establish future irreparable injury stemming from that particular Order, and thus expedited preliminary injunction proceedings regarding that Order are presently unnecessary. In prior correspondence, Plaintiffs have suggested that they continue to suffer irreparable injuries from the Executive Order despite the nationwide injunction. But even if that were accurate, that would not be a basis for moving forward with this litigation. To the contrary, if a nationwide injunction from the Western District of Washington was insufficient to redress Plaintiffs’ claimed injuries, it is unclear how those injuries could be redressed by this Court issuing a second nationwide injunction. Plaintiffs are thus in one of two situations: either they are not currently harmed (due to the nationwide injunction), or their harms are not redressable by the courts (because the Western District of Washington’s nationwide injunction was unsuccessful in redressing them). In either scenario, that presents no occasion to move forward with briefing and consideration regarding an Executive Order that is currently enjoined and is soon to be rescinded.
3. Once the current Executive Order is rescinded and a new Executive Order is issued, Defendants will promptly notify both the Court and Plaintiffs. Upon Plaintiffs review of the new Executive Order, to the extent they might wish to seek an order from this Court prohibiting enforcement of that new Executive Order, the Government is prepared to confer with Plaintiffs
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regarding an appropriate schedule for proceedings. Until the new Executive Order is issued,

however, no purpose is served by continuing with the deadlines previously set forth in this case.

Defendants therefore respectfully request that those deadlines be stayed pending the President’s

issuance of a new Executive Order.

4. To the extent the Court is not prepared to stay these proceedings—or believes

consideration of that request requires additional time—Defendants respectfully request, in the

alternative, that the Court immediately grant a modest, one-week extension of Defendants’

deadline for opposing Plaintiffs’ motion for a preliminary injunction. That opposition is currently due tomorrow, February 17, 2017. See Minute Order of Feb. 13, 2017. Given the immediacy of

this deadline, Defendants sincerely appreciate the Court’s consideration of this emergency request

for relief.

Conclusion

Defendants respectfully request that the Court stay the existing deadlines regarding

Plaintiffs’ motion for a preliminary injunction pending the President’s issuance of a new Executive

Order. In the alternative, Defendants respectfully request a one-week extension of the deadline

for opposing Plaintiffs’ motion for a preliminary injunction, until February 24, 2017.

Dated: February 16, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

CHANNING D. PHILLIPS United States Attorney

JOHN R. TYLER Assistant Branch Director
/s/ Daniel Schwei DANIEL SCHWEI (N.Y. Bar) MICHELLE R. BENNETT (Co. Bar No. 37050)

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ARJUN GARG (D.C. Bar No. 975335) BRAD P. ROSENBERG (D.C. Bar No. 467513) 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 Email: daniel.s.schwei@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Counsel for Defendants
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 Case 1:17-cv-00255-TSC Document 23 Filed 03/02/17 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants.

Civil Action No. 1:17-cv-255-TSC

BRIEF OF AMICI CURIAE AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE AND THE SOUTHERN POVERTY LAW CENTER IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

KRISTI L. GRAUNKE* GILLIAN GILLERS* Southern Poverty Law Center
1989 College Avenue NE Atlanta, GA 30317 (404) 521-6700
* pro hac vice motion forthcoming

RICHARD B. KATSKEE BRADLEY GIRARD†
Americans United for Separation of Church and State
1310 L Street, NW Washington, DC 20005 (202) 466-3234

† application for admission to Court’s bar pending
Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 23 Filed 03/02/17 Page 2 of 30 CORPORATE DISCLOSURE STATEMENT
Amici are nonprofit corporations. They have no parent corporations, and no publicly held corporation owns any portion of either of them.
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TABLE OF CONTENTS Interests of the Amici Curiae ........................................................................................ 1 Introduction ................................................................................................................... 1 Argument ....................................................................................................................... 2 A. The Plaintiffs Are Likely To Succeed On The Merits Of Their Claims................ 3
1. The Executive Order violates the Establishment Clause.............................. 3 a. The Executive Order fails the Larson Test. ........................................... 3 b. The Executive Order fails the Endorsement Test.................................. 6 c. The Executive Order fails the Lemon Test. .......................................... 13 d. The Executive Order fails the Coercion Test. ...................................... 16
2. The Executive Order violates the Religious Freedom Restoration Act. ............................................................................................................... 17
B. The Balance Of Harms And The Public Interest Favor Granting A Preliminary Injunction. ....................................................................................... 19
Conclusion .................................................................................................................... 20
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TABLE OF AUTHORITIES
Cases Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) ................................................................................ 4 Aziz v. Trump,
No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ..........................passim Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .......................................................................... 19, 20 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .......................................................................................... 18, 19 County of Allegheny v. ACLU,
492 U.S. 573 (1989) ............................................................................................ 6, 16 Edwards v. Aguillard,
482 U.S. 578 (1987) ................................................................................................ 13 Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................................ 19 Epperson v. Arkansas,
393 U.S. 97 (1968) .................................................................................................... 2 Exodus Refugee Immigration, Inc. v. Pence,
838 F.3d 902 (7th Cir. 2016) .................................................................................. 12 Fernandez v. Mukasey,
520 F.3d 965 (9th Cir. 2008) ............................................................................ 18, 19 Gordon v. Holder,
721 F.3d 638 (D.C. Cir. 2013) .......................................................................... 19, 20 Green v. Haskell Cty. Bd. of Comm’rs,
568 F.3d 784 (10th Cir. 2009) .................................................................................. 7 Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015) .................................................................................... 12 Holt v. Hobbs,
135 S. Ct. 853 (2015) ........................................................................................ 17, 18 In re Navy Chaplaincy,
738 F.3d 425 (D.C. Cir. 2013) .................................................................................. 3 Kitzmiller v. Dover Area Sch. Dist.,
400 F. Supp. 2d 707 (M.D. Pa. 2005) ................................................................... 7, 9
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Korematsu v. United States, 323 U.S. 214 (1944) ................................................................................................ 12
Larson v. Valente, 456 U.S. 228 (1982) .......................................................................................... 2, 3, 5
Lee v. Weisman, 505 U.S. 577 (1992) ...................................................................................... 3, 16, 17
Lemon v. Kurtzman, 403 U.S. 602 (1971) .........................................................................................passim
Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................................ 6, 11, 13, 14
McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005) .........................................................................................passim
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) .......................................................................... 17, 18
Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969) ................................................................................................ 15
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .........................................................................................passim
United Christian Scientists v. Christian Sci. Bd. of Dirs., First Church of Christ, Scientist, 829 F.2d 1152 (D.C. Cir. 1987) .............................................................................. 14
Van Orden v. Perry, 545 U.S. 677 (2005) .................................................................................................. 2
Wallace v. Jaffree, 472 U.S. 38 (1985) .................................................................................................... 6
Walz v. Tax Comm’n, 397 U.S. 664 (1970) .......................................................................................... 13, 15
Washington v. Trump, No. 2:17-cv-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).............................. 19
Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) .................................... 4, 20
Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir. 2008) ............................................................................ 6, 7
Widmar v. Vincent, 454 U.S. 263 (1981) ................................................................................................ 16
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Constitution and Statutes U.S. Const. amend. I.............................................................................................passim 42 U.S.C. § 2000bb-1.............................................................................................. 17, 18
Other Authorities David Brody, Brody File Exclusive: President Trump Says Persecuted
Christians Will Be Given Priority As Refugees, CBN NEWS (Jan. 27, 2017), http://bit.ly/2kCqG8M........................................... 9, 14 Donald J. Trump Statement on Preventing Muslim Immigration, DONALD J. TRUMP FOR PRESIDENT (Dec. 7, 2015), http://bit.ly/1jKL2eW ................................................................. 8, 14 Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (June 13, 2016), http://cs.pn/2k7bHGq .................................................................... 1 Emergency Motion, Washington v. Trump, 2017 WL 526497 (No. 17-35105) .................................................................. 4, 11, 20 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................passim Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF (last visited Mar. 1, 2017)................................................. 5, 8 Guide: Syria’s Diverse Minorities, BBC NEWS (Dec. 9, 2011), http://bbc.in/2l0Zgd0 ...................................................................... 15 Diaa Hadid, What Muslims Do on Hajj, and Why, N.Y. Times (Sept. 8, 2016), http://nyti.ms/2kYGovS ................................................................ 17 Michael Edison Hayden & Maia Davis, World’s Airlines Are Told It’s Back to Business as Usual for US-bound Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017), http://abcn.ws/2l8PYvy ............................................... 19 Andrew Kaczynski, Steve Bannon in 2010: ‘Islam Is Not a Religion of Peace. Islam Is a Religion of Submission,’ CNN (Jan. 31, 2017), http://cnn.it/2knpxSE ......................................................... 10 Jens Manuel Krogstad & Jynnah Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8............................................................ 7, 8 Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Dep’t of State (Jan. 27, 2017), http://bit.ly/2ksbtL2........................................................ 4, 10
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The Marranos, JEWISHHISTORY.ORG, http://www.jewishhistory.org/the-marranos/ (last visited Feb. 2, 2017) ....................................................................................... 14
Meet the Press, NBC NEWS (July 24, 2016) http://nbcnews.to/29TqPnp ..................................................................................... 8
Memorandum from Donald F. McGahn II to the Acting Sec’y of State, the Acting Attorney Gen., and the Sec’y of Homeland Sec. (Feb. 1, 2017), http://politi.co/2lNjfvS .................................................................... 10
Message from U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 (last visited Mar. 1, 2017) .................................. 9
David Morgan, Former Intel Official: Trump Immigration Ban Makes Americans Less Safe, CBS NEWS (Jan. 30, 2017), http://cbsn.ws/2jKLkpK ............................................................... 18
Ellen Nakashima, Domestic Extremists Have Killed More Americans than Jihadists Since 9/11. How the Government Is Responding, WASH. POST (Oct. 15, 2015), http://wapo.st/1Qh8Kft .............................................. 6
Alex Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx ................................................................................................ 6
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), http://cnn.it/2kGdcZy ................... 10
PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE (2012), http://bit.ly/2k4Us8B ................................................................................................ 7
Presidential Candidate Donald Trump Town Hall Meeting in Londonderry, New Hampshire, C-SPAN (Feb. 8, 2016), http://cs.pn/2kY4f1T......................................................................... 1
Reply in Support of Emergency Motion, Washington v. Trump, 2017 WL 526497 (No. 17-35105) ............................................................................ 11
The Republican Ticket: Trump and Pence, CBS NEWS (July 17, 2016), http://cbsn.ws/29NrLqj............................................................... 2, 8
Transcripts, Anderson Cooper 360 Degrees, CNN (Mar. 9, 2016), http://cnn.it/2jJmaEC ............................................................ 1
Amy B. Wang, Trump Asked for a ‘Muslim Ban,’ Giuliani Says—and Ordered a Commission to Do It ‘Legally,’ WASH. POST (Jan. 29, 2017), http://wapo.st/2jLbEO5 .................................................................. 8
The World Factbook: Syria, CIA, http://bit.ly/JZ2o63 (last updated Jan. 12, 2017) .................................................. 15
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Case 1:17-cv-00255-TSC Document 23 Filed 03/02/17 Page 8 of 30 Matt Zapotosky, DHS Report Casts Doubt on Need for
Trump Travel Ban, WASH. POST (Feb. 24, 2017), http://wapo.st/2lOkpKW ........................................................ 10, 18
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INTERESTS OF THE AMICI CURIAE1 As detailed in the accompanying motion, amici curiae are nonprofit publicinterest organizations committed to preserving religious freedom. Because the challenged Executive Order discriminates against Muslims based solely on their faith, and because constitutional injuries will accrue immediately if the Executive Order takes effect, amici have a strong interest in ensuring that the Executive Order is preliminarily enjoined.
INTRODUCTION President Trump has spent more than a year promising to ban Muslims from entering the United States. During that time, he has repeatedly disparaged and attacked an entire religion and all its adherents because he says that it is “hard to separate . . . who is who” between Muslims and terrorists. Transcripts, Anderson Cooper 360 Degrees, CNN (Mar. 9, 2016), http://cnn.it/2jJmaEC. He has insisted that, without a Muslim ban, “hundreds of thousands of refugees from the Middle East” will attempt to “take over” and radicalize “our children.” Donald Trump Remarks in Manchester, New Hampshire, C-SPAN 20:05 (June 13, 2016), http://cs.pn/2k7bHGq. He has warned that Syrian refugees would “be a better, bigger, more horrible version than the legendary Trojan Horse.” Id. And when he has “talked about the Muslims,” he has explained: “we have to have a ban . . . it’s gotta be a ban.” Presidential Candidate Donald Trump Town Hall Meeting in Londonderry, New Hampshire, C-SPAN 28:16 (Feb. 8, 2016), http://cs.pn/2kY4f1T. Now, however, when called to task over the unconstitutional discrimination on the basis of religion, the government insists that the instrument for imposing
1 No counsel for a party authored this brief in whole or in part, and no party or person other than amici, their members, or their counsel made a monetary contribution intended to fund the brief’s preparation or submission. A motion accompanies this brief.
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that ban, Executive Order 13,769, avoids illegality because it is aimed at certain countries, not expressly at Muslims. But President Trump telegraphed this very strategy as a candidate: When challenged over the illegality of banning an entire religion and its adherents, then-candidate Trump responded “[s]o you call it territories. OK? We’re gonna do territories.” The Republican Ticket: Trump and Pence, CBS NEWS (July 17, 2016), http://cbsn.ws/29NrLqj.
A Muslim ban by any other name is still a ban on Muslims. As such, it violates the fundamental constitutional guarantee of religious freedom and is indefensible as a matter of law. A preliminary injunction is warranted.
ARGUMENT “The First Amendment mandates governmental neutrality between religion and religion,” forbidding official discrimination. Epperson v. Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S. 228, 246 (1982). In mandating neutrality, the Religion Clauses “seek to assure the fullest possible scope of religious liberty and tolerance for all [and] . . . seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.” Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring) (internal quotation marks and citation omitted). Ignoring this clear constitutional command, the government has singled out one religious group—Muslims—for official disfavor and maltreatment. By instituting a wide-ranging, punishing ban on Muslim immigrants, the government runs roughshod over core First Amendment protections. Hence, the plaintiffs are likely to succeed on the merits of their claims. And because the Executive Order violates fundamental First Amendment rights and the injuries that it inflicts are irreparable, the balance of the equities and the public
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interest weigh dispositively against allowing enforcement of the Muslim ban while this case is proceeding. A preliminary injunction should issue. A. The Plaintiffs Are Likely To Succeed On The Merits Of Their Claims.
1. The Executive Order violates the Establishment Clause. At least four tests apply in determining whether governmental action violates the Establishment Clause. First, when the government confers a denominational preference—when it acts to favor or disfavor one faith or denomination over others—its conduct is subject to strict scrutiny and presumptively does not stand. Larson, 456 U.S. at 246. Second, the action is reviewed to determine whether the government is endorsing—placing its imprimatur on—religion or certain religious beliefs. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). Third, the action is evaluated under the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine (i) whether the government acted with a religious purpose, (ii) whether the effect of the government’s action is to favor or disfavor religion or a particular faith, and (iii) whether the government has entangled itself with religion. Finally, because “government may not coerce anyone to support or participate in religion or its exercise” (Lee v. Weisman, 505 U.S. 577, 587 (1992)), official action that pressures anyone to undertake or refrain from religious belief or exercise violates the Establishment Clause. It is customary to apply all the tests pertinent to the particular facts. See, e.g., In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (courts should apply Larson when relevant before proceeding to Lemon). Failure to satisfy any of the tests—or even any part of the Lemon test—invalidates the challenged action. The Executive Order fails them all.
a. The Executive Order fails the Larson Test. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson, 456 U.S. at 244; accord McCreary, 545 U.S. at 875 (“the government may not favor one religion over
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another, or religion over irreligion, religious choice being the prerogative of individuals”). Thus, when the government designates one denomination for different treatment—favorable or unfavorable—its action is subject to strict scrutiny under Larson. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1129–30 (10th Cir. 2012) (applying strict scrutiny to and invalidating state law disfavoring Islam).
1. The Executive Order singles out seven countries that are almost entirely Muslim and subjects those who were born in or come from those countries—i.e., Muslims—to harsh legal disabilities and punishments, including exclusion, detention, and expulsion. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). The disfavored status is not limited to people abroad; many within the United States have already been harmed. For example, citizens of Iran who are lawfully residing in this country have been indefinitely separated from their families and are unable to travel outside the country without jeopardizing their livelihoods. See Compl. ¶¶ 112–16.
Notably, on January 27, the State Department revoked “all valid nonimmigrant and immigrant visas of nationals” of the seven countries, regardless of where the individuals currently reside. See Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Dep’t of State (Jan. 27, 2017), http://bit.ly/2ksbtL2. The government now purports to have scaled back its attack on lawful permanent residents, but the permanence and legal validity of this latest position are very much in doubt. See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *8 (9th Cir. Feb. 9, 2017). And the legal status of many other Muslims within and outside the United States is still being rescinded, denied, or threatened.
2. The government has elsewhere argued that the Executive Order must apply so broadly because the seven identified countries are a source of threat to the United States. See, e.g., Emergency Motion at 18–19, Washington II, 2017 WL 526497 (No. 17-35105). But the official discrimination is laid bare by, among other
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things, the Executive Order’s favoring of refugees who are “religious minorit[ies]” in their home countries—including the seven countries. See Exec. Order No. 13,769 § 5(b), (e). To be sure, affording refugee status to victims of religious persecution would be constitutionally permissible. But merely being “a minority religion in the individual’s country of nationality” (id. § 5(b)) is neither necessary nor sufficient to make someone a victim of persecution. So affording preferred status solely to members of minority religions is “precisely the sort of official denominational preference that the Framers of the First Amendment forbade” (Larson, 456 U.S. at 255). And because most refugees worldwide currently come from Muslim countries (Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF (last visited Mar. 1, 2017)), the preference will primarily benefit non-Muslims, to the detriment of Muslims—a disfavored minority faith in this country.
In short, the Executive Order disadvantages Muslims from the seven countries regardless of where they live now or whether they have already been thoroughly vetted for entry into the United States; and it prefers religious minorities, i.e., non-Muslims. Such straightforward religious favoritism is “suspect” and calls for “strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246.
3. For purposes of conducting the required strict scrutiny, the government has asserted an interest in “stop[ping] attacks by foreign nationals who were admitted to the United States.” Exec. Order No. 13,769 § 1. Preventing terrorism is a compelling interest. But the Executive Order must be “closely fitted to further the interest.” Larson, 456 U.S. at 248. It isn’t.
A policy of suddenly, flatly, and universally excluding Muslims, many of whom have already been vetted and been approved by the government for entry— indeed, many of whom have lived here lawfully and peaceably for years—is not the least restrictive means to fight terrorism. People from the seven countries listed in
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the Executive Order have, collectively, killed zero people in terrorist attacks in the United States since 1975. Alex Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx. Not a single one of the top five countries of origin for foreign-born perpetrators of terrorism in the United States is listed in or covered by the Executive Order. See id. And homegrown terrorism—by non-Muslims—is a far greater threat and causes significantly more deaths, yet it is left entirely unaddressed by the Executive Order. See, e.g., Ellen Nakashima, Domestic Extremists Have Killed More Americans than Jihadists Since 9/11. How the Government Is Responding, WASH. POST (Oct. 15, 2015), http://wapo.st/1Qh8Kft. Hence, the policy’s fit with the government’s asserted interest is not merely loose; it is nonexistent.
b. The Executive Order fails the Endorsement Test. The Establishment Clause forbids government to “discriminate among persons on the basis of their religious beliefs and practices” and hence “prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’ ” County of Allegheny v. ACLU, 492 U.S. 573, 590, 594 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)). “[T]he government may not favor one religion over another” by endorsing the one or condemning the other. McCreary, 545 U.S. at 875. Yet the Executive Order does exactly that. 1. The question under the Endorsement Test is “ ‘whether an objective observer . . . would perceive” the government to have placed its stamp of approval or disapproval on religion or on a particular faith. Santa Fe, 530 U.S. at 308 (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring in the judgment)). This hypothetical “ ‘objective observer’ is presumed to know far more than most actual members of a given community.” Weinbaum v. City of Las Cruces,
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541 F.3d 1017, 1031 n.16 (10th Cir. 2008). Most notably, the objective observer is “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.” McCreary, 545 U.S. at 866. Hence, as a matter of law, the public’s view and understanding of the challenged policy here and the entire history of publicly available information about its genesis and evolution must be considered in determining whether the Executive Order is an unconstitutional religious endorsement. See id.; Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009); Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 734 (M.D. Pa. 2005). What is more, even officially repudiated past acts are not “dead and buried” but remain in the reasonable observer’s memory, affecting how the final governmental action is viewed. McCreary, 545 U.S. at 870. Finally, the Establishment Clause is violated by “both perceived and actual endorsement of religion.” Santa Fe, 530 U.S. at 305. Thus, if a reasonable observer considering the full history and context of the challenged policy would perceive governmental endorsement, even if the government did not intend it, the policy cannot stand. See McCreary, 545 U.S. at 866.
2. Disapproval of Islam and approval of other faiths is apparent from the bare text of the Executive Order. Section 3 singles out for exclusion persons from seven overwhelmingly Muslim nations: Iran (99.5% Muslim), Iraq (99.0% Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim), Sudan (90.7% Muslim), Syria (92.8% Muslim), and Yemen (99.1% Muslim). See Exec. Order No. 13,769 § 3(c); PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE 45–50 (2012), http://bit.ly/2k4Us8B. And Section 5 blocks entry of all refugees temporarily and of Syrian refugees indefinitely (Exec. Order No. 13,769 § 5(a), (c)), disproportionately affecting Muslims. As noted, Syria is overwhelmingly Muslim; and Muslims made up a plurality of all refugees resettled in the United States last year, the number of Muslim refugees having increased almost every year over the past decade. Jens Manuel Krogstad & Jynnah
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Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8. The disfavor of Islam is further compounded by the Executive Order’s favoritism toward refugees who belong to minority religions (see Exec. Order No. 13,769 § 5(b), (e)), as most refugees worldwide today come from Muslim-majority countries (Figures at a Glance, supra). The intention to disfavor Muslims, and only Muslims, is pellucid.
3. Though these features of the Executive Order alone suffice to communicate official preference for non-Muslims, as a matter of law the objective observer knows much more.
First, the precursor to the Executive Order was then-candidate Trump’s public and repeated promises of a “total and complete shutdown of Muslims entering the United States.” Donald J. Trump Statement on Preventing Muslim Immigration, DONALD J. TRUMP FOR PRESIDENT (Dec. 7, 2015), http://bit.ly/1jKL2eW. Second, candidate Trump renamed and repackaged his Muslim ban only after public outcry over its illegality, candidly explaining that because “[p]eople were so upset when [he] used the word Muslim,” he would no longer “use the word Muslim” but would now be “talking territory instead of Muslim.” Meet the Press, NBC NEWS (July 24, 2016) http://nbcnews.to/29TqPnp; see also The Republican Ticket: Trump and Pence, supra (“[C]all it whatever you want. We’ll call it territories, OK?”). Third, he publicly described this change as not “a pull-back” but “an expansion” of his Muslim ban. Meet the Press, supra (emphasis added). Fourth, after the election, President-elect Trump asked Rudy Giuliani (then a vice chair of the Presidentelect’s transition team) how the “Muslim ban” could be implemented “legally.” Amy B. Wang, Trump Asked for a ‘Muslim Ban,’ Giuliani Says—and Ordered a Commission to Do It ‘Legally,’ WASH. POST (Jan. 29, 2017), http://wapo.st/2jLbEO5. Fifth, in an interview with the Christian Broadcasting Network on January 27, 2017, the very day he issued the Executive Order, President Trump declared that
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his administration would be giving priority to Christian refugees going forward. David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN NEWS (Jan. 27, 2017), http://bit.ly/2kCqG8M.2 And sixth, the government has exempted from the ban persons from the seven identified countries who hold an Israeli passport (i.e., individuals who are likely to be Jewish). See Message from U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 (last visited Mar. 1, 2017).
The objective observer is aware of these and many other public statements by President Trump and his advisers, surrogates, and members of his administration who developed the Muslim ban and the resulting Executive Order, as well as knowing the broader “social context” in which the Executive Order and the policy that it embodies arose. See, e.g., Kitzmiller, 400 F. Supp. 2d at 734; id. at 721–22 (An objective observer would notice “a purposeful change of words . . . effected without any corresponding change in content.” (emphasis in original)). The message, and magnitude, of the government’s disfavor toward Islam is made vivid to the objective observer by the government’s initial attempt, through the Executive Order, to ban even lawful permanent residents—people whom the government had already thoroughly vetted and who in most cases know no home other than the United States—before it disavowed that position in the face of compelling legal
2 Invoking stereotypical images of violence by Muslims against Christians, President Trump made clear his view that the requests of Muslim refugees to enter the United States were to take a backseat to those of Christians: “Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.” Id.
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challenges. See Memorandum from Donald F. McGahn II to the Acting Sec’y of State, the Acting Attorney Gen., and the Sec’y of Homeland Sec. (Feb. 1, 2017), http://politi.co/2lNjfvS. And the religious animus is further underscored by the government’s mass revocation of “all valid nonimmigrant and immigrant visas,” with few exceptions, from persons from the seven Muslim countries. Letter of Edward J. Ramotowski, supra (emphasis added).
The objective observer will also be aware that, notwithstanding the President’s insistence that the Executive Order is necessary to ensure national security, the measure was crafted not by national-security experts but by political advisers, who themselves have a public record of hostility toward Muslims. See, e.g., Aziz v. Trump, No. 1:17-cv-116, 2017 WL 580855, at *9 (E.D. Va. Feb. 13, 2017) (finding “no evidence” that Executive Order’s drafters were “privy to any national security information when developing the policy”); Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), http://cnn.it/2kGdcZy; Andrew Kaczynski, Steve Bannon in 2010: ‘Islam Is Not a Religion of Peace. Islam Is a Religion of Submission,’ CNN (Jan. 31, 2017), http://cnn.it/2knpxSE. And indeed, the Department of Homeland Security has determined that “citizenship is an ‘unreliable’ threat indicator and that people from the seven countries have rarely been implicated in U.S.-based terrorism.” Matt Zapotosky, DHS Report Casts Doubt on Need for Trump Travel Ban, WASH. POST (Feb. 24, 2017), http://wapo.st/2lOkpKW.
4. Taking all of that into account, an objective observer could not help but perceive a strong message of governmental condemnation of Islam and an accompanying message of official preference for other faiths—the latter most obviously through President Trump’s express declaration that his administration would favor Christian over Muslim refugees. The objective observer would thus conclude that the Executive Order treats Muslims as “outsiders, not full members of
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the political community,” and persons of other faiths as “insiders, favored members of the political community.” Santa Fe, 530 U.S. at 309–10 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)).
5. In the related cases pending elsewhere, the government has made much of the seven countries’ having already been subjected to heightened immigration measures under the previous administration, before the Executive Order was issued. See, e.g., Reply in Support of Emergency Motion at 6–7, Washington II, 2017 WL 526497 (No. 17-35105). As an argument for the ban, the effort fails for two independent reasons.
First, for the objective observer, “purpose matters.” McCreary, 545 U.S. at 866 n.14. Thus, “the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage.” Id. “Just as Holmes’s dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether [the Executive Order] follows on the heels of [statements] motivated by sectarianism, or whether it lacks a history demonstrating that purpose.” Id. Thus, the government may not wave away the President’s statements and other publicly available information about the history of the Executive Order as improper consideration of the “subjective motive in issuing the order.” Emergency Motion, supra, at 17. The Endorsement Test requires that this information be considered, not for subjective intent, but as an objective test of how the objective observer in the public would view the Executive Order. And as Judge Brinkema of the U.S. District Court for the Eastern District of Virginia observed, “a person is not made brand new simply by taking the oath of office.” Aziz, 2017 WL 580855, at *8. What candidate and President-elect Trump said that he would do illuminates what president Trump then did.
Second, the Executive Order is not “the same government action” (McCreary, 545 U.S. at 866 n.14) as those that previously identified the seven countries. The
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Executive Order uniformly bans all immigrants and visitors from those countries, without distinguishing individuals who may pose a threat from those who served the United States and whose lives may therefore be in danger. Cf. Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 904–05 (7th Cir. 2016) (holding that excluding all Syrian refugees as per se dangerous is unlawful discrimination). The Executive Order communicates that all Muslims bear collective responsibility and are under collective suspicion for what some people—from entirely different countries—have done, supposedly in the name of Islam. “[T]o infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.” Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting). Collective maltreatment on the basis of faith sends the strongest possible message that a religion is disfavored—evoking some of the most sordid episodes of American history. See Hassan v. City of New York, 804 F.3d 277, 309 (3d Cir. 2015) (“We have been down similar roads before. JewishAmericans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind.”).
6. Simply put, the Executive Order communicates loudly and clearly that Muslims are a disfavored caste. That is not a message that the government can or should convey. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship.” McCreary, 545 U.S. at 883 (O’Connor, J., concurring). The violation of the Establishment Clause here is forthright and flagrant.
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c. The Executive Order fails the Lemon Test. The Executive Order also fails the Lemon Test, under which governmental action (i) must have a preeminently secular purpose (McCreary, 545 U.S. at 864), (ii) must have a “principal or primary effect . . . that neither advances nor inhibits religion” (Lemon, 403 U.S. at 612), and (iii) “must not foster ‘an excessive government entanglement with religion’ ” (id. at 613 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970))). Failure to satisfy any part of the test constitutes an Establishment Clause violation. See id. at 612–13. The Executive Order fails all three. 1. The secular-purpose requirement is violated if the “government’s actual purpose is to endorse or disapprove of religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch, 465 U.S. at 690 (O’Connor, J., concurring)). It is not enough for the government merely to articulate a secular purpose; “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” McCreary, 545 U.S. at 864. As with the Endorsement Test, “[t]he eyes that look to purpose belong to an ‘objective observer.’ ” Id. at 862 (internal quotation marks omitted) (quoting Santa Fe, 530 U.S. at 308). And because “reasonable observers have reasonable memories,” the Court must not “turn a blind eye to the context” but must “look to the record of evidence showing the progression leading up to” the challenged action. Id. at 866, 868. In this case, the context includes President Trump’s statements both before and after his inauguration. See Aziz, 2017 WL 580855, at *8. President Trump’s clear, unambiguous statements of purpose as a candidate, as President-elect, and now as President (only a few of which are detailed above), and the rest of the substantial and very public history leading up to the Executive Order, all bespeak the purpose to disfavor Islam—a religious minority in the United States—and to favor the majority faith. The President and his campaign surrogates
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and policy advisers promised a “total and complete shutdown of Muslims entering the United States” and an immigration program that would favor Christians. See Donald J. Trump Statement, supra; Brody, supra. Their Executive Order delivers on those promises. See Exec. Order No. 13,769 §§ 3, 5. The incantation of ‘national security’ simply does not explain the actions actually taken. So the government’s proffered justification for the Executive Order must be deemed either a “sham” or merely “secondary” to an impermissible purpose (McCreary, 545 U.S. at 864) to disfavor, vilify, and shun Muslims.
2. The Executive Order also fails Lemon’s principal-effect requirement by inhibiting Islam and advancing other faiths. See Lemon, 403 U.S. at 612.
That is partly for the reasons already explained in Section A.1.b, supra. The effect requirement is violated when, “irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval” of religion. United Christian Scientists v. Christian Sci. Bd. of Dirs., First Church of Christ, Scientist, 829 F.2d 1152, 1161 (D.C. Cir. 1987) (quoting Lynch, 465 U.S. at 690 (O’Connor, J., concurring)).
Additionally, the Executive Order inhibits Islam more directly: Muslim refugees desperate to escape the charnel house of Syria and reunite with family members in the United States are now forced to renounce or disguise their faith to qualify for the Executive Order’s exception affording preferred status to “religious minorit[ies].” Exec. Order No. 13,769 § 5(e). When remaining in Syria may be tantamount to a death sentence, this scenario is hardly implausible. Cf., e.g., The Marranos, JEWISHHISTORY.ORG, http://www.jewishhistory.org/the-marranos/ (last visited Feb. 2, 2017) (describing “[t]he forced conversion of a quarter-million Jews in Spain” during the Inquisition). It is difficult to imagine a policy that more greatly inhibits the practice of one’s faith than to render religious conversion from that faith a life-or-death matter.
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3. Finally, the Establishment Clause forbids “excessive government entanglement with religion.” Lemon, 403 U.S. at 613 (quoting Walz, 397 U.S. at 674). It thus prohibits government from imposing or implementing religious tests or making determinations based on religious doctrine. See, e.g., Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 450 (1969).
As noted, the Executive Order gives priority to certain refugee claims “provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Exec. Order No. 13,769 § 5(b). And during the 120-day blanket suspension of refugee admissions, Section 5(e) gives the Secretaries of State and Homeland Security discretion to admit persecuted religious minorities anyway if they deem it to be “in the national interest.” Yet the Executive Order does not define the term minority religion, forcing individual government agents to make that determination themselves.
The Syrian example demonstrates how fraught judgments about religiousminority status would be. Because Syria is overwhelmingly Muslim, those who profess a faith other than Islam are undoubtedly religious minorities there. But that is just the beginning. Although Syria’s Muslim population is predominantly Sunni, there is a substantial minority Shiite population, which includes significant numbers of Alawites and Ismailis. The World Factbook: Syria, CIA, http://bit.ly/JZ2o63 (last updated Jan. 12, 2017). Although Alawites are a numerical minority, they hold disproportionate governmental power and count Syrian President Bashar al-Assad among their number. Guide: Syria’s Diverse Minorities, BBC NEWS (Dec. 9, 2011), http://bbc.in/2l0Zgd0. Given the demographics and politics, whether a Sunni, a non-Alawite Shiite, or an Alawite would be considered a religious minority when fleeing Sunni-majority but Alawite-controlled Syria is unclear. What is clear is that the Executive Order would require U.S. officials to
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make religious determinations, apparently on an ad hoc, case-by-case basis, about which branch of Islam each potential refugee is most closely associated with and whether that branch constitutes a minority religion—or else to make the theological determination that these branches of Islam are insufficiently different and therefore that no Muslim refugee will be accepted as a religious minority.
If it is unconstitutional for government to decide, for example, how much of a school’s expenditure is attributable to “religious activity” versus “secular education” (Lemon, 403 U.S. at 620) or whether student activity constitutes “religious speech” (Widmar v. Vincent, 454 U.S. 263, 272 n.11 (1981)), it is all the more improper for government to decide whose religion is what and how that relates to other denominations or sects.
d. The Executive Order fails the Coercion Test. Finally, the Executive Order transgresses the constitutional guarantee that “government may not coerce anyone to support or participate in religion or its exercise.” Lee, 505 U.S. at 587. “A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.” Id. at 592. Accordingly, although coercion is not necessary to prove an Establishment Clause violation (see Allegheny, 492 U.S. at 627–28 (O’Connor, J., concurring in part and concurring in the judgment)), it is sufficient (see Lee, 505 U.S. at 587). And even “subtle coercive pressures” to believe or act against the dictates of conscience suffice to violate the Clause. Id. at 588. For “subtle pressure diminishes the right of each individual to choose voluntarily what to believe.” Id. at 605 (Blackmun, J., concurring). The coercive pressure exerted by the Executive Order is anything but subtle. As described above, Section 5 compels Muslim refugees from Syria, Afghanistan, Somalia, and other war-torn Muslim-majority countries to deny their faith and profess a minority religion simply to have a chance to be granted refuge in the
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United States. See supra Section A.1.c. Even on the most permissive view, the

government is forbidden to demand religious adherence “by threat of penalty.” Lee,

505 U.S. at 642 (Scalia, J., dissenting). Yet that is precisely the effect of the

Executive Order.

*

*

*

Rather than undertaking a careful examination of existing federal

immigration policy to determine what may be needed to ensure national security,

the President did what he has been promising for over a year: He banned Muslims.

Because the Executive Order is grounded in nothing more than religious animus,

strict scrutiny cannot be satisfied. The government’s constitutionally and morally

indefensible policy cannot stand.

2. The Executive Order violates the Religious Freedom Restoration Act.
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, provides that

governmental action must not substantially burden religious exercise unless it is

the least restrictive means to further a compelling interest—that is, unless the

action survives strict scrutiny. See Holt v. Hobbs, 135 S. Ct. 853, 860 (2015). Once

again, the Executive Order cannot meet that test.

To take an obvious example, Muslim residents of the United States who hold

visas and are legally present in this country cannot make a pilgrimage to Mecca—

one of the five pillars of Islam and a mandatory religious obligation to be fulfilled at

least once in a practicing Muslim’s lifetime (Diaa Hadid, What Muslims Do on Hajj,

and Why, N.Y. Times (Sept. 8, 2016), http://nyti.ms/2kYGovS). For if they leave the

United States and then come back, they will be detained and deported. Coercion “to

act contrary to [one’s] religious beliefs by the threat of civil or criminal sanctions” is

a substantial burden on religious exercise under RFRA. Navajo Nation v. U.S.

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Forest Serv., 535 F.3d 1058, 1069–70 (9th Cir. 2008). No one could seriously dispute that detention and subsequent deportation satisfy that statutory prerequisite.
The Executive Order must therefore be “the least restrictive means of furthering [a] compelling governmental interest” (42 U.S.C. § 2000bb-1(b)), which, as explained above (see supra Section A.1.a), it is not. A blanket ban on all immigration and visitation from seven overwhelmingly Muslim nations with little to no history of sending terrorists to the United States, and the revocation of visas and the inevitable detention and deportation of people lawfully in the United States and accused of no crime, much less terrorism, are not only far more restrictive than necessary to fight terrorism, but they may not further the government’s asserted interest at all. See, e.g., David Morgan, Former Intel Official: Trump Immigration Ban Makes Americans Less Safe, CBS NEWS (Jan. 30, 2017), http://cbsn.ws/2jKLkpK; Zapotosky, supra; see also Aziz, 2017 WL 580855 at *10 (“Ironically, the only evidence in this record concerning national security indicates that the EO may actually make the country less safe.”). The Executive Order is thus unlawful under RFRA.
More generally, RFRA was enacted “to provide greater protection for religious exercise than is available under the First Amendment.” Holt, 135 S. Ct. at 859–60. Thus, whatever else it may cover, RFRA certainly encompasses violations of the Free Exercise Clause’s core mandate that the government must not single out a particular denomination for punishment based on religious exercise. In that regard, because “[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt,” the singling out of a religious group for punishment is suspect even if done artfully and by subterfuge without making direct, explicit reference to the group or its faith. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). Here, the subterfuge is artless. The “religious gerrymander” violates the Free Exercise Clause—and thus also RFRA (cf.
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Fernandez v. Mukasey, 520 F.3d 965, 966 n.1 (9th Cir. 2008))—unless the government can demonstrate that the measure is the least restrictive means to serve a compelling interest (Lukumi, 508 U.S at 546), which it cannot. B. The Balance Of Harms And The Public Interest Favor Granting A
Preliminary Injunction. A preliminary injunction is appropriate to protect against imminent and unconstitutional official discrimination against Muslims. The issuance of a temporary restraining order by the U.S. District Court for the Western District of Washington (see Washington v. Trump, No. 2:17-cv-141, 2017 WL 462040, at *3 (W.D. Wash. Feb. 3, 2017)) has already resulted in reinstatement of some 60,000 visas for people whom the government had previously screened and approved for entry. Michael Edison Hayden & Maia Davis, World’s Airlines Are Told It’s Back to Business as Usual for US-bound Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017), http://abcn.ws/2l8PYvy. If that TRO were for any reason lifted, allowed to expire, or limited jurisdictionally to the Western District of Washington or the Ninth Circuit, there can be little doubt that the government would immediately reinstate the mass revocations throughout the country. For Plaintiffs here, the reinstatement of the Executive Order would mean estrangement from their loved ones, unemployment, inability to travel, lack of access to healthcare, or even detention and deportation—for which harms there would be no adequate remedy. What is more, “enforcement of an unconstitutional law is always contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). And because the Executive Order violates First Amendment rights, the injuries that it inflicts are irreparable as a matter of law. Elrod v. Burns, 427 U.S. 347, 373 (1976); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006) (“We . . . hold that a party alleging a violation of the Establishment Clause per se
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satisfies the irreparable injury requirement of the preliminary injunction calculus.”).
On the other side of the scales, the government has in the parallel proceedings in the Ninth Circuit asserted unfettered discretion to exclude an entire “class of aliens” whenever it makes the “predictive judgment[]” that the class threatens national security, arguing that judicial review of those decisions offends the public interest (Emergency Motion, supra, at 21–22). We anticipate that it will take the same position here. But the government has no legitimate interest, much less a compelling one, in enforcing unconstitutional policies. See Gordon, 721 F.3d at 653. It has no legitimate interest in discriminating on the basis of religion. It has made no showing that there is any serious risk from the people whom it has already vetted and granted the right to be in the United States but who are now being branded as presumptive terrorists. See Aziz, 2017 WL 580855, at *10. And it cannot seriously contend that judicial review of unconstitutional conduct undermines governmental authority. See Washington II, 2017 WL 526497, at *6. Rather, judicial review is the constitutional bulwark against naked abuse of political power that confers legitimacy on all governmental action.
The harms to the plaintiffs from the Executive Order are imminent and extreme; the purported harms to the government are not legally cognizable. All factors favor the entry of a preliminary injunction.
CONCLUSION The Executive Order is what President Trump promised all along: a “Muslim ban.” No amount of rebranding can change that. People are excluded, detained, and deported for no reason other than their deity and preferred holy book. The Executive Order is an insult to the fundamental principles of religious freedom
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enshrined in our Constitution. It cannot stand—even for a day. A preliminary injunction should be granted.

Respectfully submitted,

KRISTI L. GRAUNKE (pro hac vice motion forthcoming)
GILLIAN GILLERS (pro hac vice motion forthcoming)
Southern Poverty Law Center 1989 College Avenue NE Atlanta, GA 30317 Tel.: (404) 521-6700 Fax: (404) 221-5857 Email: Kristi.Graunke@splcenter.org Gillian.Gillers@splcenter.org

/s/ Richard B. Katskee
RICHARD B. KATSKEE, BRADLEY GIRARD (application for
admission to Court’s bar pending) Americans United for Separation of
Church and State 1310 L Street, NW Washington, DC 20005 Tel.: (202) 466-3234 Fax: (202) 466-3353 Email: katskee@au.org
girard@au.org

Counsel for Amici Curiae Date: March 1, 2017

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CERTIFICATE OF SERVICE I certify that on March 1, 2017, this brief was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ECF users and will be served electronically via that system.
/s/ Richard B. Katskee

 
 Case 1:17-cv-00255-TSC Document 35 Filed 03/15/17 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

Civil Action No. 1:17-cv-255 Hon. Tanya S. Chutkan

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs1—individual Iranian nationals and four national Iranian-American organizations—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 Preliminary Injunction (“Memorandum”). See Fed. R. Civ. P. 65(a). Plaintiffs seek to enjoin Defendants from enforcing or implementing certain provisions of President Donald J. Trump’s Executive Order No. 13,780, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” As demonstrated in the Memorandum, the Executive Order and Defendants’

1 This Motion for a preliminary injunction is filed, by and through undersigned counsel, on behalf of organizational Plaintiffs Pars Equality Center, Iranian American Bar Association, National Iranian American Council and Public Affairs Alliance of Iranian Americans, Inc. as well as individual Plaintiffs Ali Asaei, Shiva Hissong, John Doe #1, John Doe #3, John Doe #5, on behalf of himself and his minor child Baby Doe #1, John Doe #7, John Doe #8, Jane Doe #1, Jane Doe #4, Jane Doe #8, Jane Doe #9, Jane Doe #10, Jane Doe #11, Jane Doe #12, and Jane Doe #13. The remaining individual Plaintiffs were harmed by Defendants’ conduct and remain Plaintiffs in the above-captioned matter for purposes of seeking permanent relief.

Case 1:17-cv-00255-TSC Document 35 Filed 03/15/17 Page 2 of 3 implementation of it violate the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act and its implementing regulations, and the Administrative Procedure Act. Defendants should be enjoined from enforcing or implementing §§ 2(c)-(e), 3, 6(a), and 6(c) of the Executive Order.
Pursuant to Local Rule 7(m), counsel for Plaintiffs state that they have conferred with opposing counsel regarding the filing of this motion for preliminary injunction. Defendants intend to file a response to the motion for preliminary injunction in accordance with the Court’s scheduling order. Dkt. 33.
For the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction.
A proposed Order is attached hereto.
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Case 1:17-cv-00255-TSC Document 35 Filed 03/15/17 Page 3 of 3

Dated: March 15, 2017
Cyrus Mehri (D.C. Bar # 420970) Joanna K. Wasik (D.C. Bar # 1027916) Amelia Friedman (D.C. Bar # 1033583) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Lindsey D. Carson (D.C. Bar # 992620) Sally L. Pei (D.C. Bar # 1030194) Sonia Tabriz (D.C. Bar # 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell* ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Counsel for Plaintiffs
*Pro hac vice motion forthcoming

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Case 1:17-cv-00255-TSC Document 35-1 Filed 03/15/17 Page 1 of 54
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

No. 1:17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan

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

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TABLE OF CONTENTS Page
SUMMARY OF ARGUMENT ...................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 FACTUAL BACKGROUND......................................................................................................... 5
A. Mr. Trump’s Campaign Pledge to Ban Muslims from the United States............... 5 B. The January 27 Executive Order............................................................................. 6 C. Defendants’ Chaotic Implementation of the January 27 Executive Order ............. 9 D. Multiple Courts Enjoin Enforcement of the January 27 Executive Order............ 10 E. President Trump Announces Plans to Revise the January 27 Executive Order ... 12 F. The March 6 Executive Order............................................................................... 14 G. Effects of the March 6 Executive Order on Plaintiffs........................................... 18 ARGUMENT…………................................................................................................................ 23 I. Plaintiffs Are Likely To Succeed on the Merits of Each of Their Claims........................ 24 A. Establishment Clause ............................................................................................ 24 B. Equal Protection.................................................................................................... 28
1. The March 6 Executive Order Fails Strict Scrutiny.................................. 28 2. The March 6 Executive Order Fails Even Rational-Basis Review........... 31 C. Due Process........................................................................................................... 32 D. Administrative Procedure Act............................................................................... 33 1. Defendants’ Actions Are Contrary to the INA and Implementing
Regulations. .............................................................................................. 33 2. Defendants’ Actions Disregard APA Procedural Requirements. ............. 40
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Case 1:17-cv-00255-TSC Document 35-1 Filed 03/15/17 Page 3 of 54 I. Plaintiffs Will Suffer Immediate, Irreparable Harm Absent Preliminary Relief .............. 40 II. The Balance of the Equities and the Public Interest Support Preliminary Relief............. 42 CONCLUSION............................................................................................................................. 45
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TABLE OF AUTHORITIES

CASES

Page(s)

Arizona Dream Act Coalition v. Brewer, 818 F.3d 901 (9th Cir. 2015) ...................................................................................................45

Aziz v. Trump, No. 17-cv-116, 2017 WL 386549 (E.D. Va. Jan. 28, 2017) ....................................................10

Aziz v. Trump, No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ...................................................12

Bonham v. D.C. Library Admin., 989 F.2d 1242 (D.C. Cir. 1993) .........................................................................................24, 25

CBS Corp. v. FCC, 785 F.3d 699 (D.C. Cir. 2015) ...........................................................................................37, 40

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).................................................................................................................25

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).................................................................................................................31

City of New Orleans v. Dukes, 427 U.S. 297 (1976).................................................................................................................28

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).................................................................................................................30

Darweesh v. Trump, No. 17-cv-480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017)...................................................10

Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) .................................................................................................23

Graham v. Richardson, 403 U.S. 365 (1971).................................................................................................................28

Haitian Centers Council, Inc. v. McNary, 807 F. Supp. 928 (E.D.N.Y. 1992) ..........................................................................................35

Harisiades v. Shaughnessy, 342 U.S. 580 (1952).................................................................................................................28

Harris v. McRae, 448 U.S. 297 (1980).................................................................................................................28

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Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)........................................................................................................... 21-22
I.N.S. v. Chadha, 462 U.S. 919 (1983).................................................................................................................28
KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ...............................................................................................42
Kleindienst v. Mandel, 408 U.S. 753 (1972).................................................................................................................28
Landon v. Plascencia, 459 U.S. 21 (1982)............................................................................................................. 32-33
Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................24
League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016) .....................................................................................................22
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C. Cir. 1995) ...................................................................................................34
Lemon v. Kurtzman, 403 U.S. 602 (1971).................................................................................................................24
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................................32
* McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005)...............................................................................................24, 25, 26, 27
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...............................................................................................41
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................................................................................................................40
Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227 (D.C Cir. 1992) ............................................................................................37, 40
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................42
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).............................................................................................................33
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Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997) .......................................................................................... 34-35
Plyler v. Doe, 457 U.S. 202 (1982)...........................................................................................................28, 32
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).................................................................................................................28
Romer v. Evans, 517 U.S. 620 (1996)...........................................................................................................31, 32
Rosenbaum v. Washoe Cty., 663 F.3d 1071 (9th Cir. 2011) ........................................................................................... 32-33
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).................................................................................................................25
Statharos v. N.Y. Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999).....................................................................................................41
United States v. U.S. Coin & Currency, 401 U.S. 715 (1971).................................................................................................................42
United States v. Windsor, 133 S. Ct. 2675 (2013).............................................................................................................31
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)...........................................................................................................22, 29
* Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...............................................................................11, 13, 28, 32
Washington v. Trump, No. C17-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) ..................................................11
* Zadvydas v. Davis, 533 U.S. 678 (2001).....................................................................................................11, 28, 32
STATUTES
5 U.S.C. § 706(2) ...........................................................................................................................33
8 U.S.C. 1187(a)(2)..........................................................................................................................7
* 8 U.S.C. § 1152(a)(1)(A) (adopted as § 2 of the Immigration Act of 1965) .......................34, 35
8 U.S.C. § 1182(f)..........................................................................................................................33
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* 8 U.S.C. § 1522(a)(5) (adopted as § 412 of the Refugee Act of 1980) ..........................34, 35, 39 * Administrative Procedure Act...................................................................................33, 37, 38, 40 OTHER AUTHORITIES 8 C.F.R. § 205.2 .............................................................................................................................38 8 C.F.R. § 207.1 .............................................................................................................................38 22 C.F.R. part 40............................................................................................................................37 22 C.F.R. § 40.6 .............................................................................................................................37 Br. in Supp. of Commonwealth of Va.’s Mot. for the Issuance of a Rule to Show
Cause, Aziz v. Trump, Case No. 17-cv-116 (E.D. Va. Feb. 1, 2017), ECF No. 19..............................................................................................................................................10 C. Thornton, The Iran We Don’t See: A Tour of the Country Where People Love Americans, The Atlantic (June 6, 2012) ..................................................................................44 Executive Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017)............................... 1, 7,-8, 11, 26 Executive Order No. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017)........................................ passim Executive Order Section 3(c) & 6(c) .................................................................................16, 35, 36 Letter from 23 former U.S. officials to President-Elect Donald Trump (Jan. 9, 2017) ........................................................................................................................................43 Letter from Deputy Assistant Secretary of State Edward J. Ramotowski, U.S. Dep’t of State (Jan. 27, 2017) ....................................................................................................9 Press release, Senator Marco Rubio, Statement on Iran’s Presidential Election (June 14, 2013).........................................................................................................................43 Sen. John McCain, Speak Out for Iran and Its Democracy, Arizona Republic, Feb. 5, 2017......................................................................................................................................44 Transcript, Dept. of State Press Briefing, Acting Spokesperson Mark Toner, (Mar. 7, 2017), https://www.state.gov/r/pa/prs/dpb/2017/03/268288.htm. .......................................44 U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report (Apr. 2016) ..............................44 U.S. Const. amend. I ......................................................................................................................27 U.S. Const. amend. V.....................................................................................................................28 U.S. Dep’t of State, Iran 2015 Human Rights Report, in Country Report on Human Rights Practices for 2015 ............................................................................................44
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Case 1:17-cv-00255-TSC Document 35-1 Filed 03/15/17 Page 8 of 54 U.S. Department of State Foreign Affairs Manual 9 FAM 301.1-2 ..............................................37 U.S. Department of State, Important information on Executive Order – Protecting
the Nation from Foreign Terrorist Entry into the United States (Mar. 13, 2017), https://travel.state.gov/content/visas/en/news/executive-order-onprotecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html............................22, 38 U.S. Suppl. Br. on En Banc Consideration at 4, Washington v. Trump, No. 17-35105 (9th Cir. filed Feb. 16, 2017), ECF No. 154.....................................................13
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SUMMARY OF ARGUMENT Plaintiffs1—individuals of Iranian descent and four prominent national Iranian-American organizations—respectfully request a preliminary injunction preventing Defendants from implementing or enforcing President Donald J. Trump’s March 6 Executive Order No. 13,780, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“March 6 Executive Order”). Like the January 27 Executive Order No. 13,769, entitled the same (“January 27 Executive Order”), the March 6 Executive Order continues to impermissibly discriminate against persons of Iranian descent on the basis of their nationality and perceived religious beliefs by requiring that immigration laws and policies be applied to deny them and/or members of their families the opportunity to apply for a visa, for refugee status, for asylum, or to otherwise be admitted to the United States. The March 6 Executive Order and Defendants’ implementation of it violate the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act and its implementing regulations, and the Administrative Procedure Act. Absent preliminary relief, the Defendants’ conduct has and will continue to irreparably harm Plaintiffs by, among other things, separating couples and families, preventing students and professionals from participating in educational and work opportunities, and stigmatizing a community that has made an enduring contribution to the United States.
1 This Motion for a preliminary injunction is filed, by and through undersigned counsel, on behalf of organizational Plaintiffs Pars Equality Center, Iranian American Bar Association, National Iranian American Council and Public Affairs Alliance of Iranian Americans, Inc. as well as individual Plaintiffs Ali Asaei, Shiva Hissong, John Doe #1, John Doe #3, John Doe #5, on behalf of himself and his minor child Baby Doe #1, John Doe #7, John Doe #8, Jane Doe #1, Jane Doe #4, Jane Doe #8, Jane Doe #9, Jane Doe #10, Jane Doe #11, Jane Doe #12, and Jane Doe #13. The remaining individual Plaintiffs were harmed by Defendants’ conduct and remain Plaintiffs in the above-captioned matter for purposes of seeking permanent relief.
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INTRODUCTION The United States has long had a policy of sheltering Iranian dissidents from persecution in their home country, and of welcoming Iranians who, like so many others from around the world, hope to share in the promise, democratic principles and opportunity that this nation embodies. These immigrants and visitors have felt welcome in our country, and have flourished and contributed immensely to American society: Iranian Americans2 today include doctors, mathematicians, diplomats, artists, scientists, lawyers, journalists, athletes, professors, and entrepreneurs. They exemplify the vitality of this nation of immigrants, a nation bound together not by ethnicity or religion, but by the democratic principle that all people are equal before the law. On January 27, President Donald J. Trump betrayed this principle with the stroke of a pen. His sweeping Executive Order, and its chaotic and unsparing implementation by the departments and agencies charged with administering the immigration laws, upended the lives of thousands of members of the Iranian-American community, separating families, jeopardizing careers, and disrupting, even imperiling, lives. In implementing the order, Defendant agencies far exceeded the already indiscriminate direct mandate of the January 27 Executive Order in, among other things, revoking tens of thousands of visas, suspending visa processing, canceling consular interviews for thousands of applicants, and suspending refugee processing for individuals from the listed countries. Multiple courts promptly enjoined the January 27 Executive Order as unconstitutional. Notwithstanding these injunctions, the organizational Plaintiffs’ constituents and individual Plaintiffs continued to suffer harm – their visas, which had been approved before January 27, 2 See Am. Compl. ¶ 47.
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were not issued, their attempts to reschedule their cancelled consular interviews were rebuffed, and their refugee applications stayed in limbo.
On March 6, the President issued a revised Executive Order. Under the relevant legal standards, this Court must consider the March 6 Executive Order in light of the history of religious and ethnic bigotry that preceded its issuance. That history makes clear that the March 6 Executive Order does not cure the constitutional infirmity of the prior order. Indeed, as senior White House advisor Stephen Miller admitted, the changes to the March 6 Executive Order were to make “minor, technical” changes but achieve “the same, basic policy outcome for the country.”
Like its unconstitutional predecessor, the March 6 Executive Order reflects invidious discrimination. To wit, starting in late 2015, Mr. Trump, then a candidate for president, repeatedly called for “a total and complete shutdown on Muslims entering the United States.” Mr. Trump and his supporters repeated these words over and over again, making a “Muslim ban” a signature promise and rallying cry of the Trump campaign. While Mr. Trump’s campaign rhetoric shifted in response to widespread condemnation of such rank religious discrimination, he left no doubt that his intention remained the same: to ban Muslims. He made that clear on the day he signed the January 27 Executive Order when he stated that one purpose of the Order was to help Christians at the expense of Muslims. And he made it clear on March 6 when, mere hours after reissuing the Executive Order, he sent an email extolling the fact that the Executive Order continued to target nationals of “Islamic” countries.
With his March 6 Executive Order, Mr. Trump in effect continues to tar every Iranian citizen, religious or secular, Muslim or non-Muslim, infant or adult, as a presumptive proponent of “radical Islam” and an incipient terrorist. This stereotyping is un-American. It is offensive and misguided. And it will stand among the most disgraceful episodes in this Nation’s history.
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This stereotyping is also baseless. From 1975 through 2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran. While the March 6 Executive Order states that the government of Iran is a state sponsor of terrorism, over the past three decades, hundreds of thousands of people of Iranian descent have safely immigrated to or visited the United States; yet the March 6 Executive Order does not (and cannot) cite a single example of any such person of Iranian descent committing terrorist acts in the United States. Notwithstanding the prejudice behind the March 6 Executive Order, Iranian nationals have been leaders in our commerce, our communities, and our democratic institutions.
Excluding Iranians from the United States in furtherance of an anti-Muslim agenda, as the March 6 Executive Order does, not only defies rationality; it also repudiates well-established law. The U.S. Constitution and various statutes prohibit the government from officially favoring or disfavoring a religion, and from discriminating on the basis of religion or national origin. The Constitution also forbids the government from depriving individuals of protected rights without due process of law. The March 6 Executive Order directs the government to disregard all these prohibitions.
Despite the effort to dress up the March 6 Executive Order with legalisms and false “facts,” it continues to inflict serious harms on countless Iranian Americans and Iranian nationals, both within U.S. borders and beyond. The March 6 Executive Order impermissibly shunts aside the statutes and regulations that govern the U.S. immigration system. And it extinguishes the rights of many thousands of families, bypassing well-established constitutional limitations. The March 6 Executive Order does not redress core harms caused to Plaintiffs under the January 27 Executive Order, and requires that the U.S. government further discriminate against them. The harm to Plaintiffs from this invidious and discriminatory March 6 Executive
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Order is certain, imminent, and irreparable. This Court should grant Plaintiffs’ motion for a preliminary injunction against its enforcement.
FACTUAL BACKGROUND A. Mr. Trump’s Campaign Pledge to Ban Muslims from the United States On December 7, 2015, in the wake of the terror attack in San Bernardino, California, the Trump presidential campaign issued a press release titled, “Donald J. Trump’s Statement on Preventing Muslim Immigration,” which stated: “Donald J. Trump calls for a total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is going on.” This proposed “Muslim ban” became a signature promise of the Trump campaign. On the trail, Mr. Trump and his top advisors and surrogates repeated his call for such a ban time and again. And Mr. Trump read or paraphrased the December 7, 2015 statement at numerous campaign appearances. Am. Compl. ¶¶ 54-59. On December 28, 2015, during a televised interview, Mr. Trump explained how his proposed Muslim ban would work at the border: Host: The customs agent would . . . ask the person his or her religion? Trump: That would be probably — They would say, “Are you Muslim?” Host: And if they said, “Yes,” they would not be allowed in the country? Trump: That’s correct. Id. ¶ 56 In a television ad released by the Trump campaign on January 4, 2016, the narrator says that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States until we can figure out what’s going on.” During a January 14, 2016 televised debate, when asked whether he had reconsidered his “comments about banning Muslims from entering the country,” Mr. Trump responded, “No. Look, we have to stop with political correctness.” On March 9, 2016, Mr. Trump said in a televised interview, “I think Islam hates us.” Id. ¶ 57.
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Amid widespread outcry that the proposed Muslim ban would be un-American and unconstitutional, Mr. Trump and his advisors and surrogates shifted their rhetoric to be less explicit, while making clear that their continuing and underlying goal remained to exclude Muslims. On June 13, 2016, after the terror attack in Orlando, Florida, Mr. Trump said in a speech: “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 then specified that the ban would be “temporary,” and, rather than targeting Muslims per se, would apply to certain “areas of the world when there is a proven history of terrorism against the United States, Europe, or our allies, until we understand how to end these threats.” Id. ¶ 58.
Soon after, in a July 17, 2016 televised interview, Mr. Trump was confronted with his then-running mate Mike Pence’s statement calling a Muslim ban unconstitutional. Mr. Trump’s response signaled his willingness to manipulate terminology to achieve the same goal: “So you call it territories, okay? We’re gonna do territories.” A week later, in a July 24, 2016 interview, Mr. Trump was asked if his recent remarks signified a “rollback” from his proposal for a “Muslim ban.” Again, viewing the issue as one of language rather than intent, he answered: “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.’ Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” And on October 9, 2016, during a televised presidential debate, Mr. Trump stated, “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” Id. ¶ 59.
B. The January 27 Executive Order On January 27, 2017, just one week after the Inauguration, President Trump fulfilled his campaign promise to ban Muslims from entering the United States. He signed Executive Order
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No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017). At the signing ceremony, after reading the title of the Order aloud, President Trump remarked, “We all know what that means.” Am. Compl. ¶ 60.
Among other things, the January 27 Executive Order temporarily barred entry of all nationals from seven majority-Muslim countries, including Iran, temporarily suspended the entire U.S. Refugee Admissions Program (“USRAP”), established a policy of prioritizing Christian refugees upon resuming the Program, and indefinitely barred entry of Syrian refugees.
Invoking § 212(f) of the Immigration and Nationality Act (“INA”), § 3(c) of the January 27 Executive Order “proclaim[ed] that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(2), would be detrimental to the interests of the United States,” and “suspend[ed] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this Order” (with enumerated exceptions not relevant here). The referenced statute, § 217(a)(12) of the INA, refers directly or indirectly to seven countries: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. All are majority-Muslim countries. Section 3(g) of the January 27 Executive Order authorized the Secretaries of State and Homeland Security, “on a case-by-case basis, and when in the national interest, [to] issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked” under § 3(c).
Section 5(a) of the January 27 Executive Order directed the Secretary of State to “suspend the U.S. Refugee Admissions Program [USRAP] for 120 days.” Upon resumption of USRAP, § 5(b) directed the Secretary of State, in consultation with Secretary of Homeland Security, 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.” Again invoking § 212(f) of the INA, § 5(c) of the January 27 Executive
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Order “proclaim[ed] that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend[ed] any such entry” indefinitely. Section 5(e) authorized the Secretaries of State and Homeland Security, during the temporary suspension of the USRAP, to “jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest—including when the person is a religious minority in his country of nationality facing religious persecution . . . .”
President Trump made clear that the purpose of these provisions was to favor Christian refugees. In an interview with Christian Broadcasting Network just hours before signing the January 27 Executive Order, he acknowledged that “persecuted Christians” were a “priority” in his impending new refugee policy. He continued, “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . . And I thought it was very, very unfair. So we are going to help them.” Am. Compl. ¶ 68 (citing source).
Just one day after President Trump signed the January 27 Executive Order, his advisor and surrogate Rudy Giuliani eliminated any doubt whether the Order was in fact the “Muslim ban” that President Trump repeatedly promised during the campaign. On January 28, 2017, Giuliani stated: “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.” Giuliani explained that he assembled a team that came up with a Muslim ban by another name, focusing on places that just happened to be majority Muslim, “where there are [sic] substantial evidence that people are sending terrorists into our country.” Id. ¶ 69 (citing source).
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C. Defendants’ Chaotic Implementation of the January 27 Executive Order The announcement of the Executive Order in late afternoon on Friday, January 27, 2017, set off immediate chaos and confusion around the world, as senior U.S. officials responsible for the nation’s defense and homeland security as well as control of the nation’s borders denied having been adequately informed or consulted about the Order. Am. Compl. ¶ 71. The same day, the State Department—at the request of the Department of Homeland Security (“DHS”), and “in implementation of section 3(c) of the Executive Order”—issued a one-page document “provisionally revok[ing] all valid nonimmigrant and immigrant visas of nationals of” the seven countries specified in the Order. Id. ¶ 72 (citing Letter from Deputy Assistant Secretary of State Edward J. Ramotowski, U.S. Dep’t of State (Jan. 27, 2017)). The revocation affected tens of thousands of valid visas held by students, spouses, workers, and others, both in the United States and abroad, without any consideration of the particular circumstances of these individuals. In addition, U.S. Customs and Border Patrol (“CBP”) officials blocked visa holders and lawful permanent residents from entering the United States, similarly without any consideration of the particular circumstances of these individuals. Id. ¶ 75. More than 100 people reportedly were detained upon arrival at U.S. airports, and Plaintiff IABA received over 150 reports of individuals denied entry to the United States under the January 27 Executive Order, including persons who were not permitted to board flights at all despite having valid visas or other authorization to enter the United States -- and persons who arrived at U.S. airports and were turned away and put on flights out of the country. Id. ¶76; Ex. 2, ¶ 22. People whose visa applications had been approved but not yet issued had their consular appointments cancelled. Am. Compl. ¶ 73. Others had their appointments for visa interviews cancelled. Id.; Ex. 2, ¶¶ 28-34. And the USRAP stopped processing refugee applications for individuals from the listed countries. Am. Compl. ¶ 74.
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Defendants’ hasty and chaotic implementation of the January 27 Executive Order and its discriminatory policies sparked dissent across the federal government. See Am. Compl. ¶¶ 7880. Defendants also changed their positions multiple times regarding the effect and interpretation of key aspects of the Order. For example, on the question whether the January 27 Executive Order barred lawful permanent residents from entering the United States, Defendants’ views bounced around incessantly. Id. ¶¶ 81, 86.
D. Multiple Courts Enjoin Enforcement of the January 27 Executive Order Defendants’ idiosyncratic yet unsparing enforcement of the January 27 Executive Order triggered emergency litigation in federal courts across the nation. In response to CBP personnel detaining and deporting lawful permanent residents and valid visa holders, petitions for writs of habeas corpus and motions for temporary restraining orders were filed in several district courts. See, e.g., Aziz v. Trump, No. 17-cv-116, 2017 WL 386549, at *1 (E.D. Va. Jan. 28, 2017) (issuing a temporary restraining order (“TRO”) requiring the government to give lawyers access to all legal permanent residents being detained at Dulles International Airport and enjoining the removal of the petitioners, who were lawful permanent residents); Darweesh v. Trump, No. 17cv-480, 2017 WL 388504, at *1 (E.D.N.Y. Jan. 28, 2017) (issuing a temporary stay on the detention or deportation of visa holders who had arrived at U.S. airports). After CBP personnel reportedly failed to comply with these orders, Am. Compl. ¶ 77, the Commonwealth of Virginia sought to hold DHS employees in contempt for violating the Eastern District of Virginia’s TRO. See Br. in Supp. of Commonwealth of Va.’s Mot. for the Issuance of a Rule to Show Cause, Aziz v. Trump, No. 17-cv-116 (E.D. Va. Feb. 1, 2017), ECF No. 19. On January 30, 2017, the States of Washington and Minnesota sued in the U.S. District Court for the Western District of Washington, asserting First and Fifth Amendment claims. On February 3, 2017, the district court temporarily enjoined enforcement of key aspects of the
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January 27 Executive Order nationwide, including §§ 3(c), 5(a), 5(b), 5(c), and 5(e). Washington v. Trump, No. C17-141, 2017 WL 462040, *2-3 (W.D. Wash. Feb. 3, 2017).3
On February 9, 2017, the Ninth Circuit denied the government’s motion to stay the preliminary injunction. Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017). In a unanimous opinion, the court rejected the government’s argument that “the President has ‘unreviewable authority to suspend the admission of any class of aliens’” as “contrary to the fundamental structure of our constitutional democracy.” Id. at 1161. Even in the context of immigration and national security, the court concluded, the government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.” Id. at 1162 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)).
The Ninth Circuit also rejected the government’s argument that “most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.” Id. at 1164-65. The court identified several classes of immigrants subject to the procedural protections of the Due Process Clause, including “lawful permanent residents[,] non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, refugees, and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Id. at 1166 (citing Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
3 President Trump lashed out at the court on Twitter: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Id. ¶ 93. Two days later, the President again attacked the district judge: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” Id.
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With regard to the States’ religious-discrimination claim, the Ninth Circuit explained that “the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order.” Id. at 1167. As the court acknowledged, “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Id. The court reserved resolution of the religious-discrimination claim pending briefing on the merits. Id. at 1168. The court thus denied the government’s motion to stay solely on due process grounds. Id. at 1169.4
On February 13, 2017, the U.S. District Court for the Eastern District of Virginia granted the Commonwealth of Virginia’s motion for a preliminary injunction. Aziz v. Trump, No. 17-cv116, 2017 WL 580855, at *11 (E.D. Va. Feb. 13, 2017). Notwithstanding the Western District of Washington’s nationwide injunction, the Eastern District of Virginia enjoined enforcement of § 3(c) of the January 27 Executive Order within Virginia, ruling that the Commonwealth was likely to succeed on the merits of its Establishment Clause claim, holding that there was “unrebutted evidence” that the purpose of the January 27 Executive Order was to discriminate on the basis of religion in violation of the Establishment Clause. Aziz, 2017 WL 58055, at *8-9.
E. President Trump Announces Plans to Revise the January 27 Executive Order At a press conference on February 16, 2017, one week after the Ninth Circuit issued its decision, President Trump announced that he intended to appeal that decision. Referring to “the bad decision we received from a circuit that has been overturned at a record number,” the President stated, “we are appealing that, and we are going further. We’re issuing a new
4 President Trump immediately attacked the Ninth Circuit on Twitter: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Am. Compl. ¶ 97.
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executive action next week that will comprehensively protect our country. So we’ll be going
along the one path and hopefully winning that, at the same time we will be issuing a new and
very comprehensive order to protect our people.” Am. Compl. ¶ 99. He made clear, however,
that with regard to the abiding purpose of the order, the changes were cosmetic:
As far as the new order, the new order is going to be very much tailored to the what I consider to be a very bad decision. But we can tailor the order to that decision and get just about everything, in some ways, more. But we’re tailoring it now to the decision, we have some of the best lawyers in the country working on it. And the new executive order, is being tailored to the decision we got down from the court. Okay? Id. ¶ 100 (emphasis added). President Trump stated the new Executive Order would be released
“sometime next week, toward the beginning or middle at the latest part.” Id. ¶ 101.
The same day, in seeming contradiction of the President’s statements, the government
notified the Ninth Circuit that it would not seek rehearing en banc of the denial of its motion to
stay. The government explained that rehearing was unnecessary because “the President intends
in the near future to rescind the Order and replace it with a new, substantially revised Executive
Order.” U.S. Suppl. Br. on En Banc Consideration at 4, Washington v. Trump, No. 17-35105
(9th Cir. filed Feb. 16, 2017), ECF No. 154. The government repeatedly made similar
representations to this Court. See ECF Nos. 16, 18, 26.
In the meantime, senior Trump administration officials continued to represent that the
new Executive Order would be immediately forthcoming and that it would include the same
basic substance of the January 27 Executive Order. On February 21, 2017, Stephen Miller, a
senior advisor to the President, stated in a televised interview:
[B]ecause of the exigency of the situation[,] the President is going to be issuing a new executive action, based off of the judicial ruling, flawed though it may be . . . . And that is going to be coming very soon. . . . [O]ne of the big differences that you are going to see in the [new] executive order is that it is going to be responsive to the judicial ruling, which didn’t exist previously. And so these are mostly minor, technical differences. Fundamentally, you are still going to have
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the same, basic policy outcome for the country. . . . [T]hose basic policies are still going to be in effect. Am. Compl. ¶ 105 (emphasis added). On February 25, 2017, the press obtained a draft DHS report which concluded that citizenship was an “unlikely indicator” of terrorism threats against the United States. Id. ¶ 106. The draft report also found that very few persons from the seven countries included in the January 27 Executive Order had carried out or attempted to carry out terrorism activities in the United States since 2011. Specifically, the DHS report determined that, of the 82 people who were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States, half were U.S. citizens born in the United States. The remaining individuals were from 26 countries—most originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Of the seven countries designated in the January 27 Executive Order, only Somalia and Iraq were identified as being among the “top” countries-of-origin for the terrorists analyzed in the report. Id. Iran was not included on this list. Id. On February 28, reports emerged that President Trump would sign the new Executive Order on March 1, 2017. Id. ¶ 108. But when that day arrived, administration officials stated that they had delayed the rollout to avoid distracting from press coverage of President Trump’s address to a joint session of Congress. Id. One official stated that the rollout had been delayed to let President Trump’s speech “breathe.” Id. Another official said regarding the lack of urgency, “We want [the new Executive Order] to have its own moment.” Id. F. The March 6 Executive Order On March 6, 2017—a month after the Western District of Washington injunction and 19 days after the President first announced he would enact a new Order—President Trump signed Executive Order No. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). Though the March 6
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Executive Order states that it “revok[es]” and “replac[es]” the January 27 Executive Order, effective March 16, 2017, id. §§ 1(i), 13, 14, it preserves several core provisions of the prior Order. Most notably, like the January 27 Executive Order, the March 6 Executive Order suspends the USRAP for 120 days, see id. § 6(a); it suspends entry into the United States of nationals of six of the seven majority-Muslim countries designated in the January 27 Executive Order—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days, id. § 2(c);5 and it provides for a potential future expansion of the immigration ban to nationals from additional countries, id. §§ 2(a)-(b), (d)-(f). Unlike the January 27 Executive Order, however, the March 6 Executive Order does not take immediate effect. See id. §§ 3(a), 13, 14. And it “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns,” such as lawful permanent residents, in order to “avoid spending additional time pursuing litigation.” Id. § 1(i).6
The March 6 Executive Order provides that “a consular officer, or as appropriate, the [CBP] Commissioner . . . may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to permit the entry of a foreign national for whom entry is otherwise suspended” if the “foreign national has demonstrated . . . that denying entry during the suspension period would cause undue hardship . . . [and the individual’s] entry would not pose a
5 The March 6 Executive Order explains that Iraq was removed from the list of banned countries for strategic, foreign-policy reasons. “[T]he close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, and significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.” Id. § 1(g). 6 Section 3(b) lists categorical “exceptions” to the travel ban for (i) lawful permanent residents, (ii) foreign nationals who are admitted or paroled into the United States “on or after the effective date of this order,” (iii) foreign nationals with “a document other than a visa . . . that permits him or her to travel to the United States and seek entry or admission,” (iv) dual nationals traveling on passports issued by a non-designated country, (v) foreign nationals traveling on diplomatic visas, and (vi) foreign nationals who have been granted asylum and refugees who have been admitted to the United States.
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threat to national security and would be in the national interest.” Id. §§ 3(c), 6(c). Although the March 6 Executive Order provides examples of circumstances where such an exercise of discretion may be appropriate, see id. § 3(c)(i)-(ix), eligibility for a waiver is restricted to those who can demonstrate both that barring entry would cause “undue hardship” and that permitting entry is in “the national interest.” Id. § 3(c). And the determination of eligibility lacks any procedural protections, and is unreviewable. Id.
Although the travel ban nominally lasts 90 days, § 2(e) contemplates a further, indefinite ban of foreign nationals from countries that fail to provide the United States with certain information requested by the Secretary of Homeland Security. See id. §§ 2(a)-(b), (d)-(f). Due to the deterioration of U.S. diplomatic relationships with Iran, such cooperation is highly unlikely from Iran. See Am. Compl. ¶ 125. Section 2(e) thus gives the Iranian government significant power over their nationals’ ability to apply for visas, as well as those who are attempting to flee persecution to the United States. Further, the State Department spokesperson noted that he “could not speak to” whether the United States is even willing to speak with Iran to obtain such information. Transcript, Dept. of State Press Briefing, Acting Spokesperson Mark Toner, (Mar. 7, 2017), https://www.state.gov/r/pa/prs/dpb/2017/03/268288.htm.
As for the USRAP, the March 6 Executive Order suspends both the “travel” of all refugees to the United States, and all “decisions” by the Secretary of Homeland Security on applications for refugee status, for 120 days. Id. § 6(a). Nothing in the March 6 Executive Order, however, recognizes that the Defendants had halted processing of applications from nationals of the six listed countries and never resumed it, despite its resumption of admitting previously-approved refugees pursuant to the Western District of Washington injunction. Nor does the March 6 Executive Order do anything to resume USRAP’s processing of refugee applications. Ex. 9 , ¶¶ 16-19; Ex. 10, ¶¶ 15-18.
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The March 6 Executive Order contains paragraphs taken from the State Department’s Country Reports on Terrorism that address each of the six designated countries. With regard to Iran, the Order states:
Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts. March 6 Executive Order § 1(e)(i). Like its predecessor, the March 6 Executive Order targets only majority-Muslim countries—notably absent are majority-Christian nations on the State Department’s list of “Terrorist Safe Havens,” such as Colombia, Venezuela, and the Philippines. See Am. Compl. ¶ 123 (citing Dep’t of State, Country Reports on Terrorism 2015, at 307-15 (June 2016)). The March 6 Executive Order also includes only two specific examples of persons who have committed terrorism-related crimes in the United States after entering the country “legally on visas” or “as refugees”: two Iraqi nationals admitted to the United States as refugees in 2009 and a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen. March 6 Executive Order § 1(h). Iraq is no longer included among the six countries designated in the Order, see id. § 2(c), and the Order expressly contemplates waivers for children, see id. § 3(c)(v), so even the two examples cited in the March 6 Executive Order do not provide a basis for its terms. Unlike the January 27 Executive Order, the President did not make an announcement regarding the March 6 Executive Order. Rather, hours after signing the March 6 Executive Order, President Trump sent an email to his supporters soliciting financial contributions to his
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reelection campaign and extolling the fact that the Order targeted nationals of “Islamic” countries. Am. Compl. ¶ 110.
G. Effects of the March 6 Executive Order on Plaintiffs The March 6 Executive Order, like its predecessor, stands to inflict extraordinary harm on countless Iranian Americans and Iranian nationals. Since the enactment of the January 27 Executive Order, the organizational Plaintiffs have received hundreds of reports from Iranian Americans, including dual citizens, lawful permanent residents, and Iranian nationals traveling to this country on valid visas, about the catastrophic effects of the Order. They were inundated with inquiries from people blocked from boarding flights in airports overseas, or who arrived in the United States and were denied entry. See Ex. 1, ¶¶ 16-17; Ex. 2, ¶¶ 22, 24; Ex. 3, ¶¶ 33-37; Ex. 4, ¶ 22. Similarly, the March 6 Executive Order has and will continue to yield chaos and inflict significant harm upon Iranian Americans and Iranian nationals, who may be unable to complete valid and otherwise ongoing applications for visas and refugee admission for months, and potentially even longer. This discriminatory policy of exclusion begun under the January 27 Executive Order and continued under the March 6 Executive Order, has and will continue to separate families, prevent weddings, exclude professionals and students from educational and work opportunities, and to stigmatize a community that has made enduring contributions to the United States. See Ex. 1, ¶¶ 12-15, 23-28, 37-38, 43; Ex. 2, ¶¶ 12-14, 19, 22-26, 27-30, 31-42; Ex. 3, ¶¶ 24-25, 31, 43-44, 47-50, 56; Ex. 4, ¶¶ 33-35. And despite the nominal attempt to apply carve outs to evade judicial oversight, the March 6 Executive Order continues to harm the Iranian-American community as a whole. Lawful permanent residents, current visa holders and even U.S. citizens lose the ability to maintain ties with family in Iran. While the March 6 Executive Order purports to permit lawful
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permanent residents and current visa holders to travel to the United States, uncertainties
regarding the true scope and impact of the Order offer no guarantee against erratic enforcement
and unpredictable changes to the process. Iranian Americans, mindful of how the government
has treated them since January 27, fear that their ability to freely travel abroad and return to the
U.S. can be revoked at any time without notice. Ex. 2, ¶¶ 18, 29-30.
The March 6 Executive Order—like its predecessor January 27 Executive Order and
Defendants’ implementation of it—will prevent numerous Iranian nationals from relocating to or
visiting the United States for work, travel, or study. For example:
 John Doe #3 was slated to begin a four-year research fellowship at a top-ranked hospital in Boston. Ex.16A, ¶ 9. He was preparing to pick up his approved visa on February 1, 2017, when consular officials told him they could no longer issue it. Id. ¶ 17. While John Doe #3 was later told, as a result of the federal court injunction of the January 27 Executive Order, that the visa would be issued, he is still waiting in Tehran. Id. ¶ 9. He will be forced to withdraw from his fellowship if his visa is not issued soon and, if his wife’s pending visa application is denied as a result of the March 6 Executive Order, he will have to choose between abandoning his fellowship plans or facing separation from her. Id. ¶ 10.
 Jane Doe #11, a French-Iranian dual citizen and student at Cornell University’s Master of Laws program, will be unable to receive work authorization or apply for a visa to fulfill her dreams of working for a U.S.-based international law firm with which she is currently interviewing. Ex. 12, ¶¶ 12-14, 19-20. Moreover, she fears discrimination from future employers and inability to secure work as a consequence of the March 6 Executive Order. Id. ¶¶ 21-22.
 Jane Doe #12 is completing her undergraduate degree at a four-year university in the United States and will be unable to renew her student visa to complete her degree after visiting her family in France. Ex. 13, ¶¶ 11-12.
 John Doe #5, a post-doctoral fellow at the SUNY Research Foundation, as well as John Doe #1, a PhD student at Columbia University, will be unable to renew their visas upon expiration or if they have to travel outside of the United States earlier. Ex. 17, ¶¶ 16-17; Ex. 15, ¶¶ 15-17.
Under the March 6 Executive Order, six Iranian filmmakers will be unable to attend an
international film festival in Eugene, Oregon on archeological and indigenous topics to promote,
study and preserve cultural heritage. Ex. 20, ¶¶ 3-8. Apart from the related financial loss, the
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founder and Executive Director and President of the Archeological Legacy Institute considers the
exclusion of these Iranian filmmakers to be a loss of “intangible academic and professional
contributions” and “lost opportunities to develop and support our worldwide network and
experience important cultural exchange.” Id. ¶ 12. Similarly, Iranian law students seeking to
participate in the renowned Jessup Moot Court competition in early April have been unable to
obtain visas while the January 27 Executive Order was enjoined and now anticipate they will be
excluded from participating. Ex. 2, ¶ 37.
Defendants’ indiscriminate ban on Iranians, regardless of their personal circumstances,
has imposed painful family separations, including:
 Plaintiff Jane Doe #1 is a dual citizen of the United States and Iran whose fiancé’s visa was approved but not issued before the January 27 Executive Order was signed. Jane Doe #1 and her fiancé have been unable to receive any information about the status of his visa. They fear that they will be unable to marry in the United States as they had planned. Ex. 7, ¶¶ 12-21.
 Plaintiff Jane Doe #4 is an asylee who is in the process of applying for a green card. She fled political persecution in Iran and cannot return there. And because of the March 6 Executive Order, her family cannot visit her in the United States. Ex. 8, ¶¶ 8-12.
 Plaintiff Shiva Hissong, a lawful permanent resident who lives in the United States, was preparing to bring her very ill father and her mother from Iran to visit their new grandchild in the United States. She now fears her parents may never have a chance to meet him. Ex. 6, ¶ 24.
 Plaintiff Jane Doe #10, an Iranian citizen who was granted asylum in the United States on the basis of religious persecution, is separated from her husband who is still in Iran and fears for his physical safety and health. She submitted an I-730 Relative Petition on her husband’s behalf, which will be denied under the March 6 Executive Order leaving the family (including their two sons) separated indefinitely. Ex. 11, ¶¶ 6, 8-14.
 Plaintiff Jane Doe #13’s parents were denied tourist visas to visit the United States for Jane Doe #13’s wedding. The tourist visas were denied without explanation and after her parents were asked what religion Jane Doe #13 – herself an asylee and lawful permanent resident of the United States – adheres to. They indicated that Jane Doe #13 was Muslim. Jane Doe #13’s mother overheard another couple responding to a similar question, indicating that they were Christian. They were granted their tourist visas. Notably, Jane Doe #13’s parents had twice before been approved for tourist visas to visit the United States in 2011 and 2014. Ex. 14, ¶¶ 5-7, 10, 18-20. .
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 In addition, Defendants have jeopardized the safety of Iranian refugees, including Plaintiff Jane Doe #8, a lesbian woman, and Plaintiff Jane Doe #9, a lesbian transwoman, who are in a committed same-sex relationship and faced harassment and threats while living in Iran and rejection by the Muslim community because of their sexual orientation. They are currently living in Turkey and continue to fear for their safety while their refugee applications are on hold. Ex. 9, ¶¶ 8-11; Ex. 10, ¶¶ 7-10. Both the January 27 and March 6 Executive Orders have also frustrated the missions of
organizational Plaintiffs Pars, IABA, NIAC, and PAAIA. These organizations have been forced to divert a significant proportion of their resources to responding to the January 27 Executive Order and its implementation as well as the March 6 Executive Order and its future implementation. See Ex. 1, ¶¶ 9-15; Ex. 2, ¶¶ 44-56; Ex. 3, ¶¶ 28-32; Ex. 4, ¶¶ 23-30. They have put pre-existing plans on hold and been unable to perform the regular work that advances their missions, as their staff and leadership are overwhelmed by questions and requests for direct assistance. See Ex. 1, ¶ 23; Ex. 2, ¶¶ 44-49; Ex. 3, ¶¶ 41, 51-55; Ex. 4, ¶ 32. Since January 27, they have devoted hundreds of hours and diverted resources to assisting Iranian individuals and families whom the January 27 Executive Order has left stranded and the March 6 Executive Order threatens to harm significantly. See Ex. 1, ¶¶ 16-17, 21; Ex. 2, ¶¶ 28-30, 32, 34, 37; Ex. 3, ¶¶ 33, 35, 47-51; Ex. 4, ¶ 32. These organizational Plaintiffs have also engaged Members of Congress regarding potential legislative responses. See Ex. 3, ¶ 40; Ex. 4, ¶¶ 27-28.
In addition to its discriminatory intent and impact, the March 6 Executive Order, like its unlawful predecessor, leaves numerous gaps in interpretation, and Defendants have provided conflicting and otherwise inadequate guidance, increasing the strain on the organizational Plaintiffs.7
7 Organizations that expend resources combatting government action that frustrates their purpose have standing to challenge that action. See Havens Realty Corp. v. Coleman, 455 U.S.
(footnote continued on next page)
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For instance, while the March 6 Executive Order promises that the State Department will establish a waiver process, there is essentially no guidance on how individuals would be given notice of the waiver process, or how to obtain or apply for such a waiver.8 Even attempting this process will impose an unknown period of delay and additional cost to such individuals with no guarantee of success. Thus, pending the entry into force of the March 6 Executive Order, the organizational Plaintiffs have invested considerable resources to plan events and prepare educational materials, guidance and informational memoranda about the Order in advance of the March 16 effective date.
Like the January 27 Executive Order, the March 6 Executive Order and its impending enforcement have also directly undermined these organizations’ missions. The Order conflicts with Pars’ efforts to elevate individuals in the Iranian-American community to their highest career potential, and impedes Pars’ ability to provide social services and classes to achieve this goal. Ex. 1, ¶¶ 3-5. IABA, as an organization of lawyers, law students, and judges, supports the rule of law; its mission of supporting the rule of law is undermined by reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who
(footnote continued from previous page) 363 (1982); League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016). Recognizing such standing has been critical to achieving civil rights court victories throughout this nation’s history. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261 (1977). 8 On March 13, the State Department first posted information about the process for seeking or obtaining waivers, but the information sheds little light on the process, stating only that “any individual who believes he or she is eligible for a waiver or exemption should apply for a visa and disclose during the visa interview any information that might qualify the individual for a waiver/exemption.” U.S. Department of State, Important information on Executive Order – Protecting the Nation from Foreign Terrorist Entry into the United States (Mar. 13, 2017), https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-fromterrorist-attacks-by-foreign-nationals.html.
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properly followed all procedures necessary to obtain valid permission to enter the United States face arbitrary, unjust, and discriminatory restrictions on their rights. Ex. 2, ¶¶ 4; 43.
Similarly, the Executive Order directly conflicts with NIAC’s mission of defending Iranian-American interests against corporate and media bias, discrimination, and government neglect, and monitoring, influencing, and shaping national legislation affecting Iranian Americans. Ex. 3, ¶¶ 27-29. The Order undermines PAAIA’s mission to foster greater understanding between the people of Iran and the United States, expand opportunities for the active participation of Iranian Americans in the democratic process, and provide opportunities for advancement for our next generation. Ex. 4, ¶ 21.
Finally, from the perspective of the Iranian-American plaintiffs and organizations, this is not likely to simply be a “pause” or a temporary delay. Iran will almost certainly continue to be designated a state sponsor of terrorism in 90 days, and it will not materially change its relationship with the United States in a few months’ time. This seems to be, in effect, a ban that will persist for the foreseeable future. And it represents a radical break with longstanding U.S. government policy encouraging greater ties between the people of Iran and the United States and providing refuge to people fleeing the Iranian government.
ARGUMENT To obtain a preliminary injunction, a party must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) the injunction is in the public interest. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011). Plaintiffs satisfy each of these factors.
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I. Plaintiffs Are Likely To Succeed on the Merits of Each of Their Claims A. Establishment Clause Plaintiffs are likely to prevail on the merits of their Establishment Clause claim. “The
clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). The March 6 Executive Order, in its entirety, violates that clear command because its purpose and effect—as objectively demonstrated by its implementation and President Trump’s own repeated statements—is to discriminate against Muslims. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Under the three-part test set out in Lemon v. Kurtzman, all government action must “(1) have a secular legislative purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not result in excessive entanglement with religion or religious institutions.” Bonham v. D.C. Library Admin., 989 F.2d 1242, 1244 (D.C. Cir. 1993) (citing Lemon, 403 U.S. at 612-13). When the government professes a secular purpose for an allegedly sectarian practice, courts must ensure that the government’s stated purpose is “genuine, not a sham,” McCreary, 545 U.S. at 864, taking into account the implementation of the policy, its evolution over time, and contemporaneous statements of relevant decisionmakers. Bonham, 989 F.2d at 1244-45.
The Supreme Court has consistently rejected arguments that courts cannot look beyond the four corners of a challenged governmental action to determine whether its purpose is secular or sectarian. Thus, in McCreary, the Court considered the “evolution” of a Ten Commandments display over a one-year period as evidence that the government’s true purpose was sectarian. 545 U.S. at 850. The Court examined how the display changed over times, as well as the history of interactions between county executives, the ACLU, and the federal district court, id. at 851-
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57, and determined from that history that “the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality,” id. at 873. And in Santa Fe Independent School District v. Doe, the Court noted that the government’s sectarian purpose can be “established by factors beyond just the text of the policy.” 530 U.S. 290, 307 (2000). Thus, the Court examined over a year’s worth of events leading up to a school district’s adoption of a policy sanctioning prayer at high-school football games to conclude that the policy “unquestionably ha[d] the purpose and create[d] the perception of encouraging the delivery of prayer at a series of important school events.” Id. at 317.
Similarly, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, Justice Kennedy determined that a facially neutral set of ordinances were, in fact, a “religious gerrymander,” by examining “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” 508 U.S. 520, 540 (1993) (Kennedy, J., joined by Stevens, J.). The D.C. Circuit has endorsed a similar set of factors. See Bonham, 989 F.2d at 1244-45 (“In determining the legislative purpose of a law or government practice, courts generally look to the text of a statute or rule, legislative history, administrative interpretations, testimony of parties who participated in the enactment or implementation of the challenged law or practice, historical context, and the sequence of events leading to the passage of the law or the initiation of the practice.”). Such evidence is sufficient to establish that the government acted with a sectarian purpose. McCreary, 545 U.S. at 881; Santa Fe, 530 U.S. at 307-08. And a sectarian purpose in itself violates the Establishment Clause. See McCreary, 545 U.S. at 881.
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The March 6 Executive Order’s development, text, and implementation leave no doubt that its purpose is to discriminate against Muslims. As in McCreary, the policy now expressed in the March 6 Executive Order underwent an “evolution,” 545 U.S. at 850, morphing from “a total and complete shutdown of Muslims entering the United States,” Am. Compl. ¶ 54, to a “suspen[sion] [of] immigration from areas of the world whe[re] there is a proven history of terrorism against the United States, Europe, or our allies,” Am. Compl. ¶ 58, to a 90-day bar on all nationals from seven Muslim-majority countries entering the United States, a 120-day suspension of the entire USRAP, with a plan thereafter to prioritize Christian refugees; and an indefinite suspension of Syrian refugees, January 27 Executive Order §§ 3, 5, to its current form: a 90-day bar on all nationals from six Muslim-majority countries entering the United States and a 120-day suspension of USRAP admissions, March 6 Executive Order §§ 2, 3, 6.
As President Trump’s own words make abundantly clear, this evolution marks a change only in style, not in substance. Throughout the presidential campaign, then-candidate Trump stated that his plan was to ban Muslims. He even envisioned customs officers asking travelers their religion at the border and turning away anyone who responds that they are Muslim. Am. Compl. ¶ 56. Only when challenged did he shift to discussing national origin as a proxy for religion—a fresh veneer on an unconstitutional policy. Id. ¶ 58. When presented with his running mate Mike Pence’s statement that banning Muslims would be unconstitutional, Mr. Trump responded, “So you call it territories, okay?” Id. ¶ 59. The following week, Mr. Trump explained, “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.” Id. After the Inauguration, President Trump clarified that the purpose of the January 27 Executive Order was not merely anti-Muslim but pro-Christian. Id. ¶ 68.
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And after multiple defeats in court prompted President Trump to revoke and replace the January 27 Executive Order, he stated that the new Order would be tailored to the Ninth Circuit’s decision without changing the Order’s purpose or effect. Id. ¶ 100 (“[W]e will tailor the order to [the Ninth Circuit] decision and get just about everything, in some ways, more.”). President Trump’s advisors confirmed that any changes to the January 27 Executive Order would be “mostly minor, technical differences” so as to preserve “the same, basic policy outcome for the country.” Id. ¶ 105. By its own terms, the March 6 Executive Order has been crafted to circumvent the Ninth Circuit’s decision “to avoid spending additional time pursuing litigation.” March 6 Executive Order § 1(i). Indeed, the March 6 Executive Order bears the same name as its unconstitutional predecessor, and the President has extolled that the March 6 Executive Order targets nationals of “Islamic” countries. Am. Compl. ¶ 110.
After the January 27 Executive Order was rightly enjoined, Defendants now are “simply reaching for any way” to follow through on President Trump’s campaign pledge to ban Muslims from entering the United States. McCreary, 545 U.S. at 783. Immediately prior to signing the January 27 Executive Order, President Trump read its title aloud: “Protecting the Nation From Foreign Terrorist Entry Into the United States,” adding, “We all know what that means.” Am. Compl. ¶ 60. Indeed we do. This verbal wink aside, the evidence of the President’s purpose is overwhelming. It requires no “judicial psychoanalysis of [his] heart of hearts.” McCreary, 545 U.S. at 862. It has been broadcast—on the campaign trail, on Twitter, in interviews, speeches, and debates—for months. Like the January 27 Executive Order, the March 6 Executive Order is nothing more than the instantiation of President Trump’s campaign promise to keep Muslims out of this country, and it violates the Establishment Clause of the First Amendment.
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B. Equal Protection Plaintiffs are likely to prevail on their Equal Protection claims. The Fifth Amendment has an “equal protection component,” Harris v. McRae, 448 U.S. 297, 321 (1980), which applies to citizens and non-citizens alike, see Plyler v. Doe, 457 U.S. 202, 210 (1982). If the government employs a suspect class or burdens the exercise of a constitutional right, then strict scrutiny applies, and the government must show that the law is narrowly tailored to serve a compelling governmental interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978). Classifications based on national origin and religion are both suspect and trigger strict scrutiny. See Graham v. Richardson, 403 U.S. 365, 371-72 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). While courts generally give more latitude to the political branches in the immigration context, see, e.g., Zadvydas, 533 U.S. at 695, this does not free the President to act with impunity, Washington v. Trump, 847 F.3d 1151. Even in the context of immigration, the government must choose “a constitutionally permissible means of implementing [its] power.” I.N.S. v. Chadha, 462 U.S. 919, 941 (1983). At a bare minimum, the government’s interests must be “facially legitimate and bona fide,” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), and not mere “pretense” for invidious discrimination, Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952). By discriminating on the basis of religion and national origin, the March 6 Executive Order triggers and fails strict scrutiny. But regardless, the Order cannot survive any level of review.
1. The March 6 Executive Order Fails Strict Scrutiny The March 6 Executive Order warrants strict scrutiny both because it discriminates on the basis of national origin as a pretense for discriminating against Muslims, and because it discriminates on the basis of religion. The record unequivocally demonstrates that the purpose
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and effect of the Order is to ban Muslims, i.e., to discriminate on the basis of religion. The
President and his advisors repeatedly said that he would ban Muslims from entering the United
States, and that they would use geographic criteria to achieve this impermissible goal. Am.
Compl. ¶¶ 58-59, 69. That is exactly what the January 27 Executive Order did, and it is likewise
exactly what the March 6 Executive Order does. It employs discrimination on the basis of
national origin as a pretense for discrimination against Muslims. All this triggers strict scrutiny.
See Vill. of Arlington Heights, 429 U.S. at 266-67 (disparate impact plus discriminatory intent
triggers strict scrutiny).
The March 6 Executive Order cannot withstand strict scrutiny. It cites three rationales to
support its temporary ban on admission of nationals of six countries: “To temporarily reduce
investigative burdens on relevant agencies during the review period described in subsection (a)
of this section, to ensure the proper review and maximum utilization of available resources for
the screening and vetting of foreign nationals, to ensure that adequate standards are established
to prevent infiltration by foreign terrorists, and in light of the national security concerns
referenced in section 1 of this order.” March 6 Executive Order § 3(c). Notably:
 The stated justification, that Iran is a state sponsor of terrorism, provides no support for a wholesale policy of excluding Iranian nationals. In making this designation, the State Department cited Iran’s support for or engagement in activities with individuals who are not Iranian, and for actions that have occurred in countries outside of Iran other than the United States.9
 In basing exclusion based on actions of the government of Iran, the March 6 Executive Order conflicts with the purpose of an asylum and refugee program, which is intended to provide refuge to the oppressed. The March 6 Executive

9

U.S. Department of State, Bureau of Counterterrorism and Countering Violent

Extremism, Country Reports on Terrorism 2016 (June 2016), at 300-01,

https://www.state.gov/documents/organization

/258249.pdf.

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Order excludes asylum-seekers and refugees based on the policies of the government they are fleeing.
 Nothing in the Executive Order identifies any act of terrorism or national security risk posed by an Iranian national. The March 6 Executive Order cites no incidents where nationals of Iran or the other listed countries engaged in a terrorist attack in the United States. None of the three incidents identified in the Executive Order were conducted by nationals of these countries. Nor does it cite a single instance of an American being killed in a terrorist attack in the United States by a person born in Iran. See Am. Compl. ¶ 125.
 The March 6 Executive Order ignores the findings of the Department of Homeland Security Intelligence Office that citizenship is an “unlikely indicator” of terrorism threats against the United States. Id. ¶ 106.
 The March 6 Executive Order does not include nationals of countries that the State Department has identified as “Terrorist Safe Havens,” including U.S. allies such as Egypt and Pakistan, or any predominantly Christian countries, such as the Philippines, Colombia, or Venezuela. Id. ¶ 123.
 The Defendants’ agents admitted that they delayed release of the March 6 Executive Order because they wanted to avoid distracting from favorable press coverage. Id. ¶ 108.
 Immediately after issuing the March 6 Executive Order, Defendant Trump sent an email to his supporters soliciting funds for his reelection campaign, extolling the fact that the Order targeted nationals of “Islamic” countries. Id. ¶ 110.10
The government ignores an obvious, less burdensome alternative: the pre-January 27
system. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989). According to a
study conducted by the CATO Institute that reviewed data from 1975-2015, there was not a
10 Section 217(a)(12) of the INA—which specifies the six countries subject to the March 6 Executive Order—provides no support for the Order’s ban on entry. Under § 217(a)(12), nationals from those countries may enter the United States if they obtain a valid visa through the ordinary vetting processes. The March 6 Executive Order does the opposite. It bans individuals from those countries from entering the United States, and it prevents them from accessing the ordinary visa application and review procedures.
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single case of an American being killed in a terrorist attack in this country by a person born in Iran—or any of the other five countries specified in the March 6 Executive Order.11
2. The March 6 Executive Order Fails Even Rational-Basis Review While strict scrutiny applies, Plaintiffs would prevail even under a lower level of scrutiny. Governmental action that is “inexplicable by anything but animus toward the class it affects . . . lacks a rational relationship to legitimate state interests.” Romer v. Evans, 517 U.S. 620, 632 (1996). Likewise, the government has no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored minority. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). “The Constitution’s guarantee of equality ‘must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)). In short, blatant animus never justifies governmental action. As described above, the March 6 Executive Order, like the January 27 Executive Order, reflects impermissible animus against Muslims. See supra pp. 29-31. The government’s purported national-security justifications for the March 6 Executive Order ring hollow. As stated, from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in any of the six countries specified in the March 6 Executive Order. In fact, a draft report by DHS requested by President Trump in the wake of the litigation enjoining the January 27 Executive Order found that citizenship was an “unlikely indicator” of terrorist threats against the United States. Am. Compl. ¶ 106. Further, it makes no
11 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017).
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sense to bar entry to refugees from an oppressive and terroristic government on the ground that the government is oppressive and terroristic. The March 6 Executive Order thus bears no “rational relationship to a legitimate governmental purpose,” Romer, 517 U.S. at 635, and instead reflects irrational fears about Muslims.
C. Due Process Plaintiffs are likely to prevail on their Due Process claim. The Due Process Clause of the Fifth Amendment requires that the government, at a minimum, provide fair notice and an opportunity to be heard before denying constitutional and statutory rights. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Ninth Circuit correctly held that the January 27 Executive Order violated the due process rights of “lawful permanent residents[,] nonimmigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, refugees, and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Washington v. Trump, 847 F.3d at 1166 (citations omitted). While the March 6 Executive Order avoids the most obvious and egregious of those violations, it still violates the rights of persons in the United States whose family members abroad are barred from entering this country. The Due Process Clause bars any deprivation of life, liberty, or property without due process of law for “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693; see also Plyler, 457 U.S. at 210. Some Plaintiffs in the United States have applied for visas for family members to join them in this country. See Ex. 8, ¶ 4; Ex. 11, ¶¶ 8-10; Ex. 6, ¶¶ 12, 24. The March 6 Executive Order deprives these Plaintiffs of a protected liberty interest in family integrity, “a right that ranks high among the interests of the individual.” Landon v. Plascencia, 459 U.S. 21, 34 (1982); see Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011)
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(“[D]ue process right to family integrity or to familial association is well established.”). One Plaintiff, Jane Doe #1, has made wedding plans based on the expectation of receiving a fiancé visa, and now her fiancé will be unable to come to the United States to get married. See Ex. 7, ¶¶ 9-10. See also Ex. 14, ¶¶ 10, 15, 24-25. The March 6 Executive Order interferes with her constitutional right to marriage. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). Plaintiffs received no process whatsoever before Defendants summarily deprived them of these liberty interests.
D. Administrative Procedure Act Plaintiffs are likely to prevail on the merits of their Administrative Procedure Act (“APA”) claims on two grounds. First, Defendants’ impending actions to implement the March 6 Executive Order are contrary to the INA and its implementing regulations. See 5 U.S.C. § 706(2). Second, Defendants’ actions will bring about a fundamental shift in immigration regulations with no regard for the APA’s procedural requirements. The Departments of State and Homeland Security are being called upon to implement the radical change in policy dictated by the March 6 Executive Order with no administrative notice, and no opportunity for affected parties to be heard, minimal and inadequate written guidance, and in many cases no disclosure to the affected parties.
1. Defendants’ Actions Are Contrary to the INA and Implementing Regulations.
The March 6 Executive Order invokes the President’s authority under § 212(f) of the INA to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” if he determines that such entry would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f); see March 6 Executive Order §§ 1(b)(ii), 2(c), 6(b). But for two separate reasons, this provision cannot justify Defendants’ sweeping actions to implement the Order.
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First, the President’s power to suspend entry of classes of aliens under § 212(f)—and Defendants’ ability to implement such a suspension—is limited by separate, later-enacted INA provisions that prohibits invidious discrimination in the issuance of visas and the administration of the refugee program. Under 8 U.S.C. § 1152(a)(1)(A) (which was adopted as § 2 of the Immigration and Nationality Act of 1965), “no person shall . . . 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.” Similarly, under 8 U.S.C. § 1522(a)(5) (which was adopted as § 412 of the Refugee Act of 1980), refugee programs are to be administered in a non-discriminatory manner “without regard to race, religion, nationality, sex, or political opinion.”
Thus, despite § 212(f) of the INA, Defendants cannot refuse to process visa or refugee applications for all Iranian nationals based on the March 6 Executive Order’s nationality-based designations. In violation of the categorical prohibitions on such discrimination in §§ 1522(a)(5) and 1152(a)(1)(A), Defendants have been ordered to deny—and to refuse even to process—visas or refugee applications on the basis of applicants’ nationality, birth, and residence (albeit as a pretext or proxy for excluding Muslims on the basis of religion). The D.C. Circuit has made clear that in administering the visa programs, “Congress has unambiguously directed that no nationality-based discrimination shall occur.” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995) (invalidating differential treatment of Vietnamese applicants under the APA), vacated on other grounds, 519 U.S. 1 (1996) (per curiam). Notably, the 1965 amendment adding § 1152(a) to the INA aligned American immigration policy with the evolving broader government civil rights policies in other areas like voting, employment and public accommodation. Accord Olsen v. Albright, 990 F. Supp. 31, 39
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(D.D.C. 1997) (“visa policies [that] stand in direct opposition to the progress this country has made in eliminating discrimination in the context of immigration law” are unlawful).12 The President cannot with the stroke of a pen erase this longstanding pledge of fair and equal treatment.
One clear indication that the March 6 Executive Order requires the Defendants to violate the anti-discrimination provisions of the INA are the provisions that require Defendants to jettison the standard, uniform non-discriminatory visa issuance and refugee system for nationals of Iran and the other listed countries and issue waivers through an ad hoc and ill-defined waiver system. See March 6 Executive Order §§ 3(c) & 6(c). In and of itself, the Executive Order mandates the creation of a separate and unequal system for Iranian visa and refugee applicants, based on their “nationality, place of birth, or place of residence” in express contravention of the anti-discrimination provisions of §§ 1152(a)(1)(A) and 1522(a)(5). See March 6 Executive Order §§ 3(c) & 6(c). Cf. Haitian Centers Council, Inc. v. McNary, 807 F. Supp. 928, 933-34 (E.D.N.Y. 1992) (concluding the establishment of a “separate and unequal asylum track for Haitians only” raises significant Fifth Amendment issues).
Contrary to the existing eligibility standards and procedures applicable to visa and refugee applicants from countries not listed in the Order, the March 6 Executive Order provides that nationals of Iran and the other listed countries may only seek a waiver if the individual “has
12 Thus, not only does the March 6 Executive Order conflict with the express statutory text, it also violates the underlying purpose of the 1965 Amendment—eliminating discriminatory ethnicity-based wholesale exclusions and ensuring decisions about immigration will be based on “fairness” and “merit.” Statement of President Lyndon B. Johnson, “ Remarks at the Signing of the Immigration Bill, Liberty Island, NY (October 3, 1965), http://www.lbjlibrary.net/collections/selected-speeches/1965/10-03-1965.html
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demonstrated . . . that denying entry during the suspension period would cause undue hardship, that his or her entry would not pose a threat to national security and would be in the national interest.” March 6 Executive Order §3(c) (emphasis added); see also §6(c) (using same standard for refugee applicants). This standard is far more onerous than the standard that applies to other visa-seekers. In particular, requiring demonstration of both “undue hardship” and furtherance of the “national interest” (whatever those criteria mean), as well as requiring the applicant to rebut a presumption that he or she presents a threat to national security makes the prospect that any individual applicant would be granted a waiver uncertain and remote. To illustrate the futility of applying for a waiver under the Executive Order’s prejudicially burdensome criteria, consider the following examples:
 A U.S. citizen or LPR, such as Jane Doe #1, Jane Doe #10, or Jane Doe #13 could potentially demonstrate that the bar of their future spouses or family members constitutes an “undue hardship.” Ex. 7, ¶ 21; Ex. 11, ¶ 13; Ex. 14, ¶¶ 23-25. But absent unusual circumstances, how could such visa applicants establish that permitting their entry “would be in the national interest” of the United States?
 Similarly, a promising Iranian medical researcher, such as John Doe #3, or the Academy Award winning director Asghar Farhadi could potentially demonstrate that permitting their entry would further the “national interest” of the United States. But under the waiver program, their entry would still be barred unless they could show that denial “would cause undue hardship.”
Second, the actions the Defendants must take to implement the March 6 Executive Order (including establishing the waiver program) effectively revoke formally adopted State Department rules on visa processing, issuance, and revocation. For example, the State Department has issued regulations governing the visa application process, eligibility standards, and the grounds on which a consular officer may deny a visa application. Those regulations require an individual determination of eligibility, based on the specifics of the law and on individualized facts and circumstances: “A visa can be refused only upon a ground specifically set out in the law or implementing regulations,” and a consular officer’s determination that they
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have a “reason to believe” that an alien is ineligible “shall be considered to require a determination upon facts and circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa.” 22 C.F.R. § 40.6 (emphasis added). These provisions also are found in the State Department’s Foreign Affairs Manual. See 9 FAM 301.1-2 (a visa may only be refused on a ground specifically set out by statute or implementing regulation).13
Regardless of whether § 212(f) permits Defendants to bar entry— and it does not— imposing a categorical suspension on the issuance of visas to nationals of Iran and the other specified countries is contrary to the State Department’s own regulations and the FAM. Categorically deeming individuals ineligible on the basis of their nationality deprives each individual visa applicant “a determination based upon facts or circumstances.” 22 C.F.R. § 40.6. And the Department has not conducted the notice-and-comment proceedings required to reverse a rule adopted by notice and comment, nor did the State Department even provide a reasoned rationale for this sweeping impending policy change, as the APA requires. See Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227, 231-32 (D.C. Cir. 1992); CBS Corp. v. FCC, 785 F.3d 699, 708 (D.C. Cir. 2015) (agency must “provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored”).14
13 The requirements of the regulations and the FAM track § 222 of the INA, which describes the procedures for granting a visa, as well as § 212, which provides categories of ineligibility for a visa (such as having engaged in narcotics trafficking). Specific regulations, adopted through notice-and-comment rulemaking, set forth categories of ineligibility, including polygamists, international sex traffickers, and former citizens who renounce citizenship to avoid taxation. See 22 C.F.R. part 40, subparts B-K. 14 Replacing the visa program with an announcement on the State Department website that people who “believe” they are entitled to a visa should “disclose . . . any information that might
(footnote continued on next page)
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The same is true of the rules governing revocation of visa applications. Under 8 C.F.R. § 205.2, the U.S. Citizenship and Immigration Service may revoke approval of applications for immigrant visas only after notice has been given and the individual has the “opportunity to offer evidence in support of the petition . . . and in opposition to the grounds alleged for revocation,” and the right to appeal a revocation. The March 6 Executive Order provides categorically that any visa applications of Iranian nationals in process will not be issued to on the basis of their nationality. This systemic and categorical revocation of visa approvals by the Departments of State and Homeland Security will deprive affected individuals of the process to which they were due under well-established agency rules, regulations, policies, and practices.
Moreover, Defendants abrogated the regulations setting forth the process through which Iranian nationals can apply for refugee status in implementing the January 27 Executive Order— actions that they failed to correct notwithstanding the Western District of Washington’s nationwide injunction, and that the March 6 Executive Order similarly does nothing to remedy. Under DHS regulations “any alien who believes he or she is a refugee . . . and is included in a refugee group . . . may apply for admission to the United States.” 8 C.F.R. § 207.1. The DHS regulation incorporates by reference the definition of “refugee” from the INA to include “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of
(footnote continued from previous page) qualify the individual for a waiver” does not satisfy the APA requirements. See U.S. Department of State, Important information on Executive Order – Protecting the Nation from Foreign Terrorist Entry into the United States (Mar. 13, 2017), https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-fromterrorist-attacks-by-foreign-nationals.html.
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persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42).
Although not directly called for by the January 27 Executive Order (which only called for suspension of refugee admissions), the Defendants implemented that order by suspending processing of refugee applications for individuals from Iran and the other listed countries. Even after the Defendants, pursuant to the court injunctions, resumed admissions of approved refugee applicants (such as John Doe #5 and Jane Does #6, 7 & 8), the suspension of processing of refugee applications continued; multiple plaintiffs received communications that consideration of their cases were being suspended due to “the Executive Order signed by the President.” See Ex. 9, ¶¶ 16-18; Ex. 10, ¶ ¶ 17-19; Ex. 18B, ¶ 4. This was clearly contrary to law. Under 8 U.S.C. § 1522(a)(5), refugee programs are to be administered in a non-discriminatory manner “without regard to race, religion, nationality, sex, or political opinion.” The March 6 Executive Order does nothing to lift the suspension. So the discrimination against Iranian national refugee applicants continues.
Moreover, categorically refusing to consider any individual from the listed countries for refugee status abrogates existing rules for determining such status; the DHS regulations incorporate specific “grounds of inadmissibility” to become a refugee by incorporating by reference the provisions of INA §§ 208(a)(2) and (b)(2) and § 212, respectively. Neither the DHS regulations nor INA §§ 208 nor 212 permit a categorical ban on refugee status based on national origin or religion.
In addition to these infirmities, the categorical ban on Iranian refugees on the ground that Iran is a “state sponsor of terror” is arbitrary and capricious. The reason these individuals are refugees is that they are fleeing the oppressive regime in Iran. To deny them entry because of the regime’s oppression is irrational.
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2. Defendants’ Actions Disregard APA Procedural Requirements. Under the APA, an agency may not, either explicitly or implicitly, alter existing rules adopted through notice-and-comment without undertaking a new notice-and-comment process. “When an agency promulgates a legislative regulation by notice and comment directly affecting the conduct of both agency personnel and members of the public, whose meaning the agency announces as clear and definitive to the public . . . , it may not subsequently repudiate that announced meaning and substitute for it a totally different meaning without proceeding through the notice and comment rulemaking normally required for amendments of a rule.” Nat’l Family Planning, 979 F.2d at 231. Even for rules adopted without notice-and-comment proceedings, the agency is not free to change its rules on a whim; the agency must provide a reasoned explanation for its changes. See CBS Corp., 785 F.3d at 708; Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”). The Executive Order calls upon the Defendants to cast aside established regulations and practices, impose a categorical ban on refugee admissions, and apply new, sweeping rules for visa denials and revocations, all without any of the formal procedural steps that the APA requires. Worse, government officials have provided no guidance or mechanisms in place to prevent arbitrary determinations as to individuals under the case-by-case review provision. These actions are procedurally invalid under the APA. I. Plaintiffs Will Suffer Immediate, Irreparable Harm Absent Preliminary Relief Without this Court’s intervention, Plaintiffs will suffer immediate and irreparable harm as a result of the enforcement of the March 6 Executive Order. Where, as here, plaintiffs allege
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deprivations of constitutional rights, irreparable harm for purposes of a preliminary injunction is presumed. Statharos v. N.Y. Taxi & Limousine Comm’n, 198 F.3d 317, 322-23 (2d Cir. 1999). The “loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)).
Moreover, Plaintiffs face actual irreparable harm. The organizational Plaintiffs have already been forced to divert significant portions of their limited resources to respond to the March 6 Executive Order, just as they did to respond to the January 27 Executive Order. They have had to indefinitely suspend or substantially reduce their regular activities—including providing social and legal services, assisting new immigrants to the United States, and legislative and political outreach—while they sort through the implications of the March 6 Executive Order. See Ex. 1, ¶¶ 16-21, 23, 32-33, 40-43; Ex. 2, ¶¶ 32, 44-56; Ex. 3, ¶¶ 33-55; Ex. 4, ¶¶ 23-30. Further, the Iranian American community for which the organizational Plaintiff stand has experienced severe disruption to family ties, educational and business pursuits, and their efforts to contribute to U.S. civic society. See Ex. 1, ¶¶ 11-15, 37, 43; Ex. 2, ¶¶ 18- 19, 42, 53; Ex. 3, ¶¶ 30-31, 47-50; Ex. 4, ¶¶ 22, 33-35.
The March 6 Executive Order also threatens irreparable harm to the individual Plaintiffs:  Plaintiffs Ali Asaei and John Doe #1 will likely be unable to extend or apply for a new
work authorization when their current status expires. Due to the inability to extend his work authorization, Mr. Asaei has decided to leave the United States and return to Iran. Ex. 5, ¶ 20. John Doe #1 will likely be forced to quit his job and leave the United States permanently as well upon expiration of his status, or earlier. Ex. 15, ¶ 17.  The parents of Plaintiff Jane Doe #4, an Iranian citizen who was granted asylum in the United States in 2016, have applied for a tourist visa to visit her in the United States. Jane Doe #4 is unable to return to Iran due to feared religious persecution. Once the March 6 Executive Order is in effect, the parents of Plaintiff Jane Doe #4 will be unable to travel to the United States and she will be separated from them indefinitely. Ex. 8, ¶¶ 3-4.
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 Plaintiff John Doe #3 will be unable to begin his fellowship researching diabetes effects on the heart at a top rated hospital in Boston or will be forced to be separated from his wife. Ex. 16A, ¶¶ 9, 14, 17.
 Plaintiff Jane Doe #11, a French-Iranian dual citizen with a student visa, will be unable to fulfill her dreams of working for a U.S.-based international law firm upon graduating from Cornell University’s Master of Laws program. Ex. 12, ¶¶ 19-21. Plaintiff Jane Doe #12 will be unable to complete her undergraduate degree at a four-year university in the United States upon expiration of her student visa. Ex. 13, ¶¶ 11-12.
 John Doe #5 and his wife will be unable to receive new visas to enter the United States. As a result, they face separation from their families in Iran now and will be forced to leave the United States permanently in the future. Ex. 17, ¶ 16-17.
 Plaintiff Jane Doe #1 will be unable to get married to her visa-holding fiancé. Ex. 7, ¶¶ 15-16.
 Plaintiffs Jane Doe #8 and her partner Jane Doe #9 will continue living in exile in a small town in Turkey, fearing violence on the basis of their sexual orientation, and where they are unable to seek employment. Ex. 9, ¶¶ 8-11; Ex. 10, ¶¶ 7-10.
 After being asked about Plaintiff Jane Doe #13’s Muslim faith, her parents were denied tourist visas to visit the United States for Jane Doe #13’s wedding. Jane Doe #13 and her fiancé have thus been forced to postpone their wedding plans and contemplate getting married without her parents present. Ex. 14, ¶¶ 23-25.
 Plaintiff Jane Doe #10, who was granted asylum in the United States on the basis of religious persecution, has submitted an I-730 Relative Petition on her husband’s behalf because she fears for his physical safety and health. His application will not be granted. Ex. 11, ¶¶ 8, 10, 12-14.
II. The Balance of the Equities and the Public Interest Support Preliminary Relief
The balance of equities and the public interest also support preliminary relief. “These
[two] factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418,
435 (2009). The government and the public have no legitimate interest in enforcing
unconstitutional laws or actions. See United States v. U.S. Coin & Currency, 401 U.S. 715, 726
(1971); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). Any
purported “national security” justification for enforcing the March 6 Executive Order is a blatant
pretext for invidious discrimination and provides no basis for categorically excluding the
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individual Plaintiffs and others from the United States on the basis of their religion or national origin (as a proxy for religion). The March 6 Executive Order states that nationals of Iran are covered because Iran “has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq”; “has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia”; and “does not cooperate with the United States in counterterrorism efforts.” March 6 Executive Order § 1(e)(i). The Order is not based on any evidence, much less any reasoned determination by the Department of Homeland Security or otherwise, that Iranian nationals should be deemed presumptive terrorists.
Indeed, the March 6 Executive Order, like the January 27 Executive Order, is contrary to longstanding U.S. policy and far more likely to harm than to advance interests of the United States. For decades, this nation has sought to promote democracy and religious freedom and to sanction human rights abuses in Iran. Lawmakers from both sides of the aisle have consistently supported political opposition efforts in Iran. See Am. Compl. ¶ 133 (citing Letter from 23 former U.S. officials to President-Elect Donald Trump (Jan. 9, 2017) (stating that the safety of 2,500 Iranian opposition members stranded in Iraq, whom the U.S. pledged to protect, “remains a moral obligation for the United States”));15 id. (citing Press Release, Senator Marco Rubio, Statement on Iran’s Presidential Election (June 14, 2013), (“I intend to . . . find ways to continue to highlight the Iranian regime’s treatment of its own people and . . . work toward the day when
15 This bipartisan group includes former House Speaker Newt Gingrich, former Bush Administration Secretary of Homeland Security Tom Ridge, and Former New Mexico Governor and U.S. Ambassador to the United Nations Bill Richardson . Their letter to then-PresidentElect Trump emphasized the importance of helping the people of Iran, noting that “the core of our approach is to side with 80 million Iranian people and their desire . . . for freedom and popular sovereignty based on democratic principles.”
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the Iranian people will have a real opportunity to shape their country’s future.”)). Consistent with these principles, the United States has recognized that it is in the national interest to provide shelter and legal protection to individuals fleeing persecution from the Iranian government, including in particular those who have been victims of “systematic, ongoing, and egregious violations of religious freedom.” U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 45 (Apr. 2016). Public opinion of the United States is higher in Iran than in any other country in the Middle East (other than Israel). C. Thornton, The Iran We Don’t See: A Tour of the Country Where People Love Americans, The Atlantic (June 6, 2012).
The U.S. Commission on International Religious Freedom has made clear that U.S. efforts with respect to Iran are about Iranian government policy and not the people of Iran: “[T]he United States continues to keep in place and enforce sanctions for Iran’s human rights violations, its support for terrorism, and its ballistic missile program. According to the State Department, these sanctions are intended to target the Iranian government, not the people of Iran.” U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 48 (Apr. 2016). The State Department’s Human Rights Report on Iran criticizes the Iranian government because it “severely restricted freedom of speech and of the press and used the law to intimidate or prosecute persons who directly criticized the government or raised human rights problems.” U.S. Dep’t of State, Iran 2015 Human Rights Report 15, in Country Report on Human Rights Practices for 2015. Senator John McCain stated U.S. policy clearly in 2009: “The president and his administration should be at the forefront, calling on the Iranian regime to annul the fraudulent election, to restore the people's inalienable rights, and to allow peaceful protesters to voice their opinions. . . . [B]y standing with the Iranian people as they pursue their legitimate rights we will demonstrate to them—and to the world—that American is more than its might.” Sen. John McCain, Speak Out for Iran and Its Democracy, Arizona Republic, Feb. 5, 2017.
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In the face of all this, and without any basis, the March 6 Executive Order stigmatizes all Iranians—Muslim or non-Muslim, religious or secular—as presumptively subscribing to “radical Islam” and harboring terrorist intentions against the United States. This baseless stereotyping is an affront to the Iranian American community, who represent and foster those elements of Iranian society that are most likely to cherish the values of freedom and tolerance that this country has long represented. Slamming the door on Iranian individuals, with no regard to their personal circumstances, plays into the hands of hard-liners in the Iranian government, who have long used the United States—“the Great Satan”—as a foil to justify their repressive policies. The March 6 Executive Order leaves Iranians who stand up to the regime out in the cold, and will likely encourage anti-Americanism in the region. None of those results serves the American public’s interest or our national security.
On the other hand, Plaintiffs have a vital, pressing interest in securing preliminary relief and in enjoining enforcement of a policy that infringes their constitutional rights. “The public interest and the balance of the equities favor preventing the violation of a party’s constitutional rights.” Arizona Dream Act Coalition v. Brewer, 818 F.3d 901, 920 (9th Cir. 2015). There are no other adequate remedies.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be granted. A proposed order is attached.
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Dated: March 15, 2017
Cyrus Mehri (D.C. Bar # 420970) Joanna K. Wasik (D.C. Bar # 1027916) Amelia Friedman (D.C. Bar # 1033583) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Lindsey D. Carson (D.C. Bar # 992620) Sally L. Pei (D.C. Bar # 1030194) Sonia Tabriz (D.C. Bar # 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell* ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Counsel for Plaintiffs
*Pro hac vice motion forthcoming

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TABLE OF EXHIBITS

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16A Exhibit 16B Exhibit 17 Exhibit 18A Exhibit 18B Exhibit 19A Exhibit 19B Exhibit 20

Declaration of Plaintiff The Pars Equality Center Declaration of Plaintiff Iranian American Bar Association Declaration of Plaintiff The National Iranian American Council Declaration of Plaintiff The Public Affairs Alliance of Iranian Americans Attachment 1 Attachment 2 Declaration of Plaintiff Ali Asaei Declaration of Plaintiff Shiva Hissong Declaration of Plaintiff Jane Doe #1 Declaration of Plaintiff Jane Doe #4 Declaration of Plaintiff Jane Doe #8 Declaration of Plaintiff Jane Doe #9 Declaration of Plaintiff Jane Doe #10 Declaration of Plaintiff Jane Doe #11 Declaration of Plaintiff Jane Doe #12 Declaration of Plaintiff Jane Doe #13 Declaration of Plaintiff John Doe #1 Declaration of Plaintiff John Doe #3 Supplemental Declaration of Plaintiff John Doe #3 Declaration of Plaintiff John Doe #5 Declaration of Plaintiff John Doe #7 Supplemental Declaration of Plaintiff John Doe #7 Declaration of Plaintiff John Doe #8 Supplemental Declaration of Plaintiff John Doe #8 Declaration of Richard M. Pettigrew

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EXHIBIT 1

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF THE PARS EQUALITY CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Sarvenaz Fahimi, 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, and am competent to testify thereto.
2. I am the Senior Director of the Legal Department at Pars Equality Center (Pars). In this capacity, I oversee the work of all of attorneys and Board of Immigration Appeals (BIA, now OLAP) accredited representatives.
3. The Pars Equality Center is a 501(c)(3) non-profit dedicated to helping all members of the Iranian-American community and other Persian-speaking countries realize their full potential as informed, self-reliant, and responsible members of American society. Pars believes that learning and teaching the rights and responsibilities of citizenship in a democracy as well as the rules and rewards of entrepeneurship are the necessary ingredients for our success as a community. Pars achieves its mission primarily by 1

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providing extensive social and legal services out of community centers. The organization’s Persian-speaking staff advocates for families and individuals in need with a strong focus on refugees, asylees, and those newcomers living in poverty. The Board of Directors of Pars are all of Iranian descent. Pars is based in California. 4. While its focus is on the Iranian-American community, Pars does not close its doors to anyone seeking its services. Especially in its immigration services, Pars serves clients from various backgrounds and nationalities. In 2016, Pars provided 20,713 units of service1 across all of its locations, with the majority of clients of Iranian descent. 5. Among other things, Pars provides mentorship and career development for IranianAmericans. For example, Pars hosts a Silicon Valley career development techniques and best practices workshop, which covers resume writing, successful interviewing, information about the culture of the workforce in Silicon Valley, and how employees can make themselves an instant asset to potential employers. Pars also hosts a “Generation +” initiative that provides the younger generation of Iranians, both American-born and immigrants, with career mentors, peer mentors and career opportunities. Pars selects a broad array of mentors from the private, public, and art sectors, provides formal mentorship that connects younger Iranians with mentors that best fit that individual’s needs, and organizes social events to allow members of the community to bring together the community and facilitate career connections. Through its work with Generation +, Pars acts as a catalyst for social, cultural and economic integration of Iranians speaking communities to achieve their highest potential.
1 A “unit of service” measures one service – for example, one workshop, one immigration-related consultation, or one ESL class. One individual can receive multiple units of service from Pars.
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6. Pars provides various other social services to Iranian Americans and Persian speakers of all ages. Pars provides, among other things, English as a Second Language (ESL), citizenship, and resume writing/interview skills classes; computer training and access to employment resources including job fairs; assistance navigating the social and medical systems; and other services to improve the quality of the family’s life in our community. Through the Kordestani Family Fund, Pars also invests in the education of Iranian American youth by providing a grant each year to a student of Iranian descent graduating from high school in California with specific plans to continue their education in a College or University in California. Pars also has a Senior Program for Persian speaking immigrants over the age of 55 which includes interactive programs, tours and picnics to provide an uplifting and inspiring environment that these individuals can call home away from home.
7. The legal services provided by Pars are intended to provide community members the resources to become productive citizens by educating and advocating on behalf of individuals in the community. The legal staff members at Pars are either licensed attorneys or accredited Board of Immigration Appeals representatives, and they guide individuals through the immigration process and provide extensive legal services, including: citizenship, green card renewals, domestic violence based petitions, family relative petitions, travel documents, issues arising in the refugee context, and counselor processing.
8. Pars’s legal team also works on a national level to offer advice, analysis and legal research in other areas, including litigation, employment, family and sanction law issues. To this end, Pars works with other organizations, such as the Iranian American Bar
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Association and the Public Affairs Alliance of Iranian Americans, across the United States to educate the community about relevant legal issues and advocate on behalf of Iranian Americans in the U.S.
Pars’ Frustration of Mission
9. Pars is extremely concerned about the March 6 Executive Order because, like the January 27 Executive Order before it, it will have a highly negative impact on both the community that we serve as well as the mission and purpose of our organization. For the reasons discussed below, enforcement of the March 6 Executive Order will harm Pars’ mission in multiple ways and has already forced Pars to scramble to address its effect, thus causing Pars to divert valuable resources away from its usual activities.
10. The goal of the legal services that Pars typically provides — to effectively use the immigration laws to advocate on behalf of immigrants, including immigrants from Iran, and to guide individuals through immigration processes — were crippled by the January 27 Executive Order and will be crippled by the March 6 Executive Order if and when it is enforced. While Pars attorneys seek to provide concrete answers, at present the March 6 Executive Order prevents them from informing those who seek their services what to expect with their or their family members’ pending visa applications, whether they should submit future petitions, whether current visa-holders with single-entry visas should travel outside of the United States for work or pleasure, and whether current visaholders will be able to renew their visas to continue the lives they had planned in the United States. The assistance that Pars typically provides to individuals with their visa applications is severely delayed.
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11. Pars seeks to facilitate the social, cultural and economic integration of Iranians to achieve their highest potential while also staying connected to their Iranian heritage. However, the March 6 Executive Order, like the January 27 Executive Order before it, falsely singles out Iranians in the United States and those seeking to enter as a terrorist threat. Such a negative label on the Iranian-American community has already sown fear and anxiety in the community we serve. The stigma and discrimination that is caused by the January 27 and March 6 Executive Orders will exacerbate the challenges that immigrant groups, especially immigrants from primarily Muslim countries like Iran, already face in the United States.
12. Pars also seeks to elevate Iranians and Persian speakers to achieve their highest career potential in the United States. However, the March 6 Executive Order blocks the entry of, or forces the departure of, many Iranians who would otherwise have contributed to the vibrant and creative economy of the United States. For example, based on Pars’ programs relating to mentorship and career development, Generation +, and educational programming, I believe it is likely that the March 6 Executive Order will affect the decisions of employers, who may prefer not to hire or sponsor Iranian visa holders, or even legal permanent residents and dual citizens. In addition, the March 6 Executive Order will cause individuals with high levels of educational attainment – Master’s and PhD degree holders who are applying for H1B, or other business or student visas – to be denied visas or for their visas not to be renewed. Some of these educated individuals may also choose to leave the United States, even if it means leaving behind promising careers or degree programs, in order to be reunited with family who is not able to enter the United States.
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13. The psychological and emotional toll of the January 27 Executive Order, which the March 6 Executive Order only exacerbates, has come into stark relief in conversations between Pars staff and Iranian Americans. Entire families are experiencing profound disruption, given that the children of visa holders may be well-integrated into American life and culture, yet the Executive Order may soon force their parents to leave the United States if they are unable to renew their visas. In short, while Pars fights for families to establish themselves in their communities and for individuals to achieve their greatest career potential, the Executive Order is likely to cause family separation and a brain drain from the United States.
14. The purposes of Pars’ citizenship classes will also be undermined by the March 6 Executive Order, just as they were undermined by the January 27 Executive Order. Pars teaches Iranian immigrants about the U.S. democratic system, and the rights and privileges that it bestows. The goal is for those who learn at Pars to become wellintegrated, self-sufficient members of their communities. However, after the January 27 Executive Order, Pars was unable to answer basic questions about what the U.S. government has in store for those entering the country from Iran and those currently in the United States on visas. The March 6 Executive Order does nothing to alleviate that uncertainty and concern. In fact, both of the Executive Orders share the same pernicious effects: they stigmatize and alienate the Iranian-American community and make many of its members feel as though the country they consider home is treating them like secondclass citizens.
15. The January 27 and March 6 Executive Orders have made it difficult, if not impossible, for many individuals to plan their future lives in the United States. It has all but put hopes
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of citizenship and permanent status out of reach for the most vulnerable populations that Pars serves — refugee applicants and asylum applicants. And for visa holders as well as dual citizens and permanent residents, the March 6 Executive Order means that they may not be able to have their family members join them in the United States as planned. The vast uncertainty, confusion, and deep fear caused by the January 27 Executive Order and perpetuated by the March 6 Executive Order has already manifested itself in great harm to the communities that Pars serves as well as the organization’s mission. That harm will only continue to deepen if and when the March 6 Executive Order is enforced.
Diversion of Resources Resulting from the January 27 Executive Order 16. Our organization suffered economic harm directly as a result of the January 27 Executive
Order. Upon signing of the January 27 Executive Order, our legal services staff received twice the typical volume of calls, emails, in-person questions and other inquiries. Individuals of all legal statuses — dual citizens, green card holders, visa holders, those seeking protected status (VAWA, U Visa, 10751 with waiver), refugees and refugee applicants, and asylees and asyulum applicants, and others —called with fearful questions about themselves or their loved ones. Instead of our usual legal services, we focused almost completely on addressing unanswerable queries about the January 27 Executive Order. 17. Our legal services team was inundated with constant telephone calls, emails, and messages. In the week following the signature of the January 27 Executive Order, I was forced to devote dozens of hours of my time solely to dealing with Order-related issues. In fact, the work of answering calls and answering the queries of individuals spilled over
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to our social services team, which would typically make a referral to the legal services team, because legal services is so overwhelmed. 18. The individuals who contacted Pars as a result of the January 27 Executive Order included asylum applicants from Iran outside the United States who were unable to enter the United States, as well as those Iranians who had been granted refugee status in the United States but whose families were still abroad and now unable to join them. 19. Pars resources were also diverted from our typical programming. Instead of preparing and giving panels and presentations on topics of education, citizenship, and career, we were forced to present almost exclusively on the January 27 Executive Order and its impact on the Iranian American community. We spent significant time organizing with other groups and entering into coalitions to share information and be able to adequately inform the community about its effects. 20. As an example, one attorney at Pars was unable to work on any of the cases to which she was assigned before the January 27 Executive Order was signed. Instead, she spent all of her working time researching updates on the January 27 Executive Order and making presentations on its impact. For one of her presentations, she had to seek out the assistance of a psychologist who would counsel distraught individuals after her presentation. 21. Another attorney had to devote significant time completing research on the January 27 Executive Order and basic constitutional analysis so that she could respond to queries received by Pars, instead of performing her regular job functions. Other staff members, particularly within Pars’ legal services branch, have spent their time educating
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themselves about the January 27 Executive Order and regularly posting online about it for the benefit of the impacted community.
Pars’s Diversion of Resources and the Harm to Pars Constituents and Clients Subsequent to the Washington v. Trump Order 22. After the court in Washington v. Trump, Case No. 2:17-cv-141-JLR (W.D. Wash.) issued
an order temporarily restraining the Executive Order, and later construed that order as a preliminary injunction, Pars continued to be forced to divert its resources to address the ongoing effects of the January 27 Executive Order. Further, the January 27 Executive Order continued to frustrate the mission of Pars. 23. Many individuals continue to experience harm caused by the Executive Order since the time of the Washington v. Trump orders. For example, Pars was contacted by an individual whose spouse’s H1B visa had been approved prior to the Executive Order. The individuals’ spouse was waiting for USCIS to send her the approval letter to allow her visa to be processed at the U.S. Embassy in Beirut. Likely as a result of the Executive Order, however, the processing of her H1B visa was delayed. To date, the individual’s spouse has still not received any notice from USCIS and has been unable to travel into the United States. In the experience of immigration attorneys at Pars, the processing of a H1B visas generally did not take nearly this long prior to the January 27 Executive Order. 24. While administrative processing is typical in some cases, the volume of cases that Pars staff have seen placed into administrative processing is unusual, and, in the opinion of Pars immigration attorneys, likely due to the January 27 Executive Order. For example, members of the community served by Pars who have submitted I-130 petitions for alien relatives (immigrant visa petitions) have seen their cases placed into administrative
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processing in the wake of the January 27 Executive Order. Despite numerous contacts to the relevant Embassies, these individuals are unable to move their petitions forward, get their cases released from administrative processing, or obtain any information about their cases. 25. Similarly, United States citizens at various stages of obtaining K-1 fiance visas for their overseas fiancés have experienced longer than expected delays. Some cases that were progressing prior to the Executive Order have been placed in administrative processing and are still delayed. 26. Many asylum applicants with pending asylum petitions contacted Pars because they are concerned about the status of their applications in the wake of the January 27 Executive Order and despite the Washington v. Trump order. 27. Numerous F-1 and H-1B visa holders expressed to Pars staff that they have a serious fear of traveling due to the uncertainty of their ability to return to the United States. Some of these individuals are choosing not to travel even in emergency situations. They are concerned that, if they are barred from reentering the United States, they will be unable to continue their education or work. 28. Further, a number of individuals consulted Pars about concerns with filing visa letters of invitation. Often, lawful permanent residents or U.S. citizens who seek to assist friends or relatives wishing to visit the U.S. on a non-immigrant visa will write a letter of invitation, to be submitted with the visa application, asserting that the friend or relative has a specific plan regarding his or her visit, and that the lawful permanent resident or U.S. citizen can provide financial support to the friend or relative if necessary. Letters of invitation often make it easier for the friend or relative to obtain a visa.
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29. I had a consultation with one individual regarding his intent to write a visa letter of invitation on Tuesday, February 21st. Given the January 27 Executive Order and the legal uncertainty it continued to cause, I was unsure what advice I could provide to this individual during our consult. The Washington v. Trump order provided only interim relief. Further, reports that a new Executive Order would be issued soon, and that it could continue to impact the cases of people in this individual’s situation, further compounded the already profound legal uncertainty. Thus it was not possible for me to advise this individual on what he could expect further down the line regarding his relatives’ tourist visa.
30. Staff members of Pars, especially those in its Legal Department, continued to field many questions from individuals that are concerned about the effect of the January 27 Executive Order on their lives even after the Washington v. Trump order. The individuals who reach out to Pars were worried, scared, and confused. In many instances, Pars was not able to provide concrete answers or reassurance to them.
31. Pars staff members continued to spend time organizing and coordinating panels regarding the Executive Order generally, as well as “know your rights” talks related to the Executive Order. Pars staff is continuously in touch with the co-speakers and cosponsoring organizations involved in these events. The most recent event co-hosted by Pars was held on February 23, 2017 in Orange County, CA.
Pars’s Diversion of Resources and the Harm to Pars Clients and Constituents From the March 6 Executive Order
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32. The drain on Pars’ time and resources has continued with the signing of the March 6 Executive Order, and is certain to continue if and when the March 6 Executive Order is enforced.
33. As it did with the January 27 Executive Order, Pars feels ongoing pressure to ensure that it is sufficiently addressing Executive Order-related topics in response to the community’s interest and concern.
34. The March 6 Executive Order prohibits the issuance of visas to Iranian citizens in the near future — and possibly indefinitely. The impact of this prohibition cannot be overstated.
35. The vetting process for Iranians seeking visas to enter the United States has long been robust. Yet the Iranian community, on the whole, has been successful in obtaining visas prior to the Executive Order. Part of the Iranian community’s success in getting visas stems from the fact that Iran has a very secure documentation system. At birth, each individual is issued a birth certificate with a birth certificate number, name, place and date of birth, gender, and information relating to the individual’s parents, including their names and residences. In addition to a birth certificate, each permanent resident of Iran above the age of fifteen is issued a National Identity Card by the Iranian Ministry of the Interior. The secure documents that Iranians are able to provide with their visa applications facilitate the thorough and reliable vetting of Iranians seeking to enter the United States.
36. The March 6 Executive Order seems to require that, in contrast to the vetting process in place prior to the January 27 Executive Order, the Islamic Republic of Iran be involved in
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the vetting of visa applicants from Iran to the United States. Yet in my opinion, involving the Islamic Republic in U.S. vetting is a dangerous, irrational, and illogical proposition. 37. Based on my experience as Legal Director at Pars, I believe that the March 6 Executive Order will negatively impact visa holders residing in the United States who were planning to renew their visas; it will negatively impact Iranian Americans of all legal statuses who wish to host visitors, including family and friends, from Iran; it will negatively impact Iranian citizens, including students and professionals, who wish to come to the United States for the very first time; and it will expose many Iranian Americans, regardless of legal status, to discrimination based on the March 6 Executive Order’s reckless and unjustified equation of Iranian descent with terrorist activity. 38. The March 6 Executive Order also halts the U.S. refugee program. Iranian individuals who have completed an extensive vetting process with UNHCR, as well as some who have also begun or completed the process of being accepted to the United States Refugee Assistance Program, have now been told that they will be unable to come to the United States. Many of these individuals are currently waiting resettlement to the United States in places in which they are in physical danger and live in profound economic insecurity. Many of them have fled from Iran after being persecuted for their religious or political beliefs or their sexual orientation and have pinned all their hopes of a safe, happy existence on the United States. Further, even if the refugee program is resumed, the limit of 50,000 refugees in fiscal year 2017 will severely restrict any chances that such individuals may have of coming to the United States. 39. In my opinion, the March 6 Executive Order’s restrictions on the refugee program is an abandonment of this country’s commitment to sheltering those who have fled from
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repressive regimes. It undermines not only Pars’ mission of assisting such individuals but also the laudable vision upon which the United States has long prided itself. 40. The March 6 Executive Order has already had an immediate impact on the clients of Pars. For example, one individual who came to the United States seven years ago as a refugee, and two years ago obtained U.S. citizenship, sought my consultation recently. She had filed a family petition on behalf of her mother, who needs family support due to severe medical issues, two years ago. After two years of waiting, this individual’s mother was finally granted an interview in Dubai scheduled for the end of January. However, the interview was canceled due to the January 27 Executive Order. After the Washington v. Trump ruling, the interview was rescheduled for the first week in April. Now, this individual is fearful that the interview will yet again be cancelled. She was asking me for legal advice, and I truly did not have the answers. Under the terms of the March 6 Executive Order, visas that have been issued are preserved, but will a scheduled interview stand? Will the individual’s mother have to pay for and cancel yet another airline ticket? Should the mother’s family members, who are scheduled to travel to the interview in Dubai with her, take time off work? This individual told me that she will be forced to leave her position as a nanny in the United States if her mother’s interview does not proceed in the near future, because her mother’s health does not allow her to keep living alone in Iran. Although she is a citizen of the United States, this individual will be forced to leave her home country as a result of the January 27 and March 6 Executive Orders. 41. When counseling the individual above, I did not know how to apologize for our country’s failure to treat her — a United States citizen — equally with other citizens. The only
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thing I could do was to tell her to remain hopeful that her mother’s interview will not be cancelled, or that if it is it will be rescheduled soon, which is cold comfort indeed. 42. Pars staff have been forced to continue to address community members’ concerns since the March 6 Executive Order. Pars has already planned two panel events to give information about the March 6 Executive Order and provide opportunities for the community’s questions to be answered. One event will be held on March 15 at our Orange County center, while the other will be held on March 14 in San Jose. Both events will be staffed by our own in-house immigration attorneys. 43. In summary: even in its short lifespan, the January 27 Executive Order caused profound psychological and emotional harms to the Iranian-American community. The March 6 Order, while longer-winded, does very little to counteract those harms. The fear and anxiety created by the January 27 Executive Order lives on due to the March 6 Executive Order, and both Orders have or will separate and unmoor families. The January 27 and March 6 Executive Orders have also put into jeopardy the economic security of the Iranian American community and the March 6 Executive Order is sure to cause a brain drain from the United States as many Iranian immigrants, refugees and Iranian Americans are forced to, or choose to, leave the country in search of more stable employment, reunification with their families, or both. The March 6 Executive Order also creates barriers for students from Iran to attend U.S. colleges and universities — barriers which hurt both countries. By extension, the March 6 Executive Order will also weaken the economic contribution of the Iranian-American community to the United States. The January 27 Executive Order, and the March 6 Executive Order if and when it is enforced,
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EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

No. 15-cv- 255 (TSC)

DECLARATION OF THE PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Leila Golestaneh Austin, hereby declare and
state as follows: 1. I am over the age of eighteen years. I have personal knowledge of the facts set
forth here or believe them to be true based on my experience or upon information provided to me by others, and I am competent to testify to them.
I. Background Information for the Public Affairs Alliance of Iranian Americans (PAAIA) 2. I am the Executive Director of the Public Affairs Alliance of Iranian Americans
(PAAIA). PAAIA, Inc. is a 501(c)(4) nonprofit, bipartisan, non-sectarian, national membership organization with an affiliated 501(c)(3), IA-100, Inc. I have been the Executive Director at PAAIA since February 1, 2015.
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3. Because of my position as Executive Director, I know about the history and background of PAAIA as well as the organization’s mission and purposes. I am also involved in the day to day operations of PAAIA, and thus am very familiar with our current expenses and resources. I oversee the programs and activities sponsored by PAAIA and am either involved directly or indirectly with the publications PAAIA releases or otherwise contributes to.
4. The 501(c)(3) of PAAIA has an exclusive membership comprised entirely of Iranian Americans. All of the approximately 50 members of the PAAIA 501(c)(3) are either U.S. citizens or legal permanent residents and almost all reside in the United States. Membership in the 501(c)(3) is by invitation and invitees are individuals who have demonstrated leadership in their respective fields, are active in the Iranian-American community, and are willing to commit their resources in the promotion of PAAIA’s goals and programs.
5. The 501(c)(4) of PAAIA also has members who register online with the organization. Members can elect online to register for either the free membership, the $100 Supporters members, the $1,000 Ambassador’s Circle, the $2,500 Congressional Club membership, or the $5,000 National Leadership Circle membership. In addition, PAAIA has 18,645 individuals on our mailing list who receive our communications, 8,452 of whom have signed up under the free membership program and have the option to donate to certain programs.
6. As explained in more detail below, PAAIA engages in many programs and activities which are developed and implemented by a staff located in Washington, D.C. Currently there are three full time PAAIA staff members, including myself, and two part-time university students working as staff members.
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II. Mission & Purpose of PAAIA
7. PAAIA was founded to represent and advance the interests of the IranianAmerican community, which is estimated to be a population approaching one million people, a large portion of which are citizens or permanent legal residents. Iranian Americans are patriotic and have served in all branches of the military and many have dedicated their lives to public service. Working in tandem with the community at large and with other organizations, PAAIA has effectively promoted the role of Iranian Americans in the social, cultural, and economic tapestry of the United States. Serving the interests of Iranian Americans and representing the community before U.S. policymakers and the American public at large, it works to foster greater understanding between the people of Iran and the United States, expand opportunities for the active participation of Iranian Americans in the democratic process at all levels of government and in the public debate, and provide opportunities for advancement for our next generation.
8. Since its inception in 2008, PAAIA continues to carry out its mission by engaging in programs and activities throughout the United States to benefit Iranian Americans and promote a positive image of Iranian Americans. For example, PAAIA has implemented programs such as Passing the Torch of Success, the Nowruz Project, Nowruz on Capitol Hill, Cyrus Cylinder Tour at the Asian Art Museum in San Francisco, and A Thousand Years of the Persian Book at the Library of Congress in Washington, D.C., all of which portray a more accurate image of the Iranian-American community to the general public, policymakers, and lawmakers.
9. PAAIA also fights discriminatory and harassing treatment towards Iranian Americans and stands up for the rights of Iranian Americans by working on issues such as addressing inflammatory remarks about Iranians made by a retired Stanford faculty member;
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ensuring that the professional networking website, LinkedIn placed Iran back on their education drop-down menu from where it had been removed; and working with the American Values Network (AVN) to have them drop an anti-oil ad campaign that targeted Iran in favor of a new concept that promotes clean energy but shields innocent Iranians and Iranian Americans from a bad image. In more recent years, PAAIA has written to Chancellor Kumble R. Subbaswamy, of the University of Massachusetts, Amherst, expressing disapproval of the University’s new policy which banned Iranians from enrolling in graduate engineering programs; sponsoring a letter signed by 37 prominent Iranian Americans urging the 2016 presidential candidates to refrain from broad generalizations about the Iranian people when discussing the prospective nuclear agreement taking shape between the P5+1 and Iran. In 2015, PAAIA launched a National Communications Campaign to inform the general public as well as U.S. lawmakers about the Iranian-American community’s broad support for the Iran Nuclear agreement.
10. PAAIA also continues to educate the general public, lawmakers, and policymakers about the Iranian-American community. For example, in May 2014, PAAIA released a report, “Iranian Americans: Immigration and Assimilation,” available through PAAIA’s website at http://www.paaia.org/CMS/Data/Sites/1/pdfs/iranian-americans--immigration-and-assimilation.pdf (copy supplied as Attachment 1). This report is the first in a series of three reports providing more in-depth information about Iranian Americans, which discussed among other things the three major waves of Iranian immigration to the United States, self-identification of the Iranian American community, and typical benchmarks of assimilation. As another example, in June 2015, PAAIA released its 2015 Survey of Iranian Americans, which was presented in a congressional briefing and released to the public at large in connection with a panel discussion hosted by PAAIA on the Iran nuclear negotiations. PAAIA’s annual Survey of
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Iranian Americans is available at http://www.paaia.org/CMS/survey-of-iranian-americans.aspx. These are just a few examples of the numerous publications about and on issues concerning Iranian Americans that are released by PAAIA every year.
11. Because one of PAAIA’s key initiatives is leadership-building, PAAIA operates a number of youth programs to encourage future Iranian American leaders. PAAIA’s youth programs include sponsoring public service fellowships for Iranian Americans throughout the United States and helping young Iranian Americans obtain internships with legislative offices in Washington D.C.
12. PAAIA has been featured in national and international print and online news media. The organization writes news articles and monitors the media reports on Iranian Americans. PAAIA is also viewed by Iranian Americans as a source of information about issues impacting the community.
III. PAAIA’s Promotion of the Iranian American Community
13. According to PAAIA’s 2014 report on Iranian Americans: Immigration and Assimilation, while the first known Iranian American, Mirza Mohammed Ali (better known as Hajj Sayyah, “The Traveler”) arrived in the United States in approximately 1867, the first wave of Iranian immigration to the United States did not occur until the 1950s. PAAIA’s report explained that most Iranian Americans arrived in the United States during the second wave of migration from 1979 to 2001 and were fleeing oppression in Iran. The report went on to describe how these second-wave Iranians, as opposed to earlier immigrants, were more likely to identify themselves as exiles or political refugees.
14. PAAIA has also published reports documenting how upon arriving in the United States Iranians quickly assimilated into and thrived in American culture. PAAIA provides some
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of this information on the Demographics & Statistics page of its website, http://www.paaia.org/CMS/demographics--statistics.aspx. As PAAIA details online, Iranian Americans have educational attainments that greatly surpass the national average. According to Ronald H. Bayer’s Multicultural America: An Encyclopedia of the Newest Americans, about 50 percent of all working Iranian Americans are in professional and managerial occupations, greater than any other group in the United States at the time the survey was conducted.
15. While assimilating into American society, Iranian Americans maintain close ties to their family in Iran. According to PAAIA’s 2016 National Public Opinion Survey of Iranian Americans, available online at http://www.paaia.org/CMS/Data/Sites/1/PDFs/PAAIA-2016Reportrev-newcover.pdf, 84% of respondents have family in Iran and approximately one-third are in contact with their family or friends in Iran at least several times per week. PAAIA’s 2016 survey further reported that thirty percent of respondents traveled to Iran once every two or three years.
16. Both as individuals and as a community Iranian Americans have actively participated in and enriched all levels of American culture and society, and have contributed to economic growth in America. Iranian Americans have made important contributions to the public sector, technology, business and the arts. PAAIA has profiled or made public information about many prominent Iranian Americans, including Cyrus Habib, Lieutenant Governor of Washington; Hadi Partovi, CEO of education non-profit Code.org; and Firouz Naderi, the former associate director of NASA’s Jet Propulsion Laboratory. Iranian Americans have also founded some of the most innovative companies in the last twenty years and have been on the forefront of innovations in the technology sector. To provide just a few examples of prominent Iranian Americans who I am aware of, an Iranian American, Pierre Omidyar, founded eBay; an Iranian
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American, Omid Kordestani, serves as the Executive Chairman of Twitter; Farzad Nazem, was the chief technology officer at Yahoo; an Iranian American, Salar Kamangar, is a senior Executive at Google and the former CEO of Google’s YouTube platform; Iranian American Omid Kordestani is Twitter’s Executive Chairman.
17. Iranian Americans have also made significant contributions to the arts, such as Shoreh Aghdashloo, an Iranian American actress whose work has been recognized by the Emmys and the Oscars, and Nasser Ovissi, an internationally acclaimed artist.
18. I am also aware of Iranian Americans who have made important contributions in public service, serving in both national and state offices, such as Cyrus Amir-Mokri, who served as the Assistant Secretary for Financial Institutions at the United States Treasury; Faryar Shirzad, who served on the staff of the National Security Council; Goli Ameri, say Assistant Secretary of State of the Bureau of Educational and Cultural Affairs under the George W. Bush administration the current President and CEO of the Center for Global Engagement; and Azita Raji, who was nominated by President Obama to serve as United States Ambassador to the Sweden.
19. And, while the Iranian-American community has been smeared as terrorists by the Executive Order, the initial first responder on the scene at the San Bernardino terrorist attack was an Iranian-American medic. One of the victims of that atrocious act was also an Iranian American.
IV. PAAIA’s interest in and concern about enforcement of the January 27 and March 6 Executive Orders
20. PAAIA is vitally interested in and concerned about ongoing harm and impact resulting from the original January 27, 2017, Executive Order, “Protecting the Nation from
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Foreign Terrorist Entry Into the United States” (“January 27 Executive Order”) and the subsequent March 6, 2017, Executive Order of the same name (“March 6 Executive Order”), expected to go into effect on March 16.
21. The Executive Orders have disrupted PAAIA’s mission of encouraging constructive relations and enhancing mutual understanding between the peoples of the United States and Iran. We have received inquiries from our membership as to whether the enforcement of this exclusionary policy will also strain relations between the United States and Iran, thereby debilitating PAAIA’s mission of promoting greater understanding between the Iranian and American people. Members are concerned that the Executive Orders create a negative stigma on Iranian Americans, directly conflicting with the missions and purposes of PAAIA, which stands for the positive impact of Iranian Americans.
22. PAAIA’s members have been adversely affected by the signing of the January 27 Executive Order. For example, a PAAIA member—an Iranian-American, internationally renowned doctor, who immigrated to the United States after the Iranian government imprisoned him for several years in what was considered to be an unjust and politically motivated strike— was tremendously impacted when his brother, despite having a valid visa and being a visiting scholar at an American university, was not allowed to re-enter the United States after visiting their elderly father in Iran. This member reached out to me, and through PAAIA’s connections I helped him obtain assistance from attorneys working with Iranian Americans whose family members have been stranded in Iran. Although his brother has now successfully returned to the United States, PAAIA members with family in Iran are concerned about the likelihood that their family will no longer be able to come to the United States, in some case their parents.
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23. The Executive Orders have caused PAAIA to divert substantial resources to combating their discriminatory effects, and this will continue once the March 6 Executive Order goes into effect. Since the January 27 Executive Order was signed, PAAIA has had to divert most of its resources to responding to media inquiries and requests about the impact of the policy on Iranian Americans and their families, providing guidance and educating the public on the impact of the Executive Orders, and developing a strategy for how to respond to the Executive Orders. PAAIA has held emergency phone calls on this subject, including an emergency telephone conference for concerned Iranian Americans with immigration and civil rights lawyers to provide its members and other Iranian Americans information about the policy and how it might impact their lives. PAAIA has also prepared several press releases and informational memorandum for its members concerned about the Executive Orders. The day to day activities of PAAIA have shifted away from its regular programs and activities towards combating the negative and wrongful effects of the Executive Order on PAAIA’s members and other Iranian Americans.
24. Since January 27, PAAIA has had to divert its resources away from its normal programming and activities. For example, PAAIA was scheduled to launch a new fellowship program for Iranian American youth, but was unable to do so after the Executive Orders forced PAAIA to divert its resources. Similarly, the Executive Orders forced PAAIA to postpone an event that was going to be hosted on behalf of an Iranian American running for local office. PAAIA has also been unable to devote staff time to activities such as planning for the organization’s upcoming annual event on Capitol Hill, fundraising for the organization, informational and networking events for members, and electioneering activities for the organization.
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25. As another example of how PAAIA has had to divert resources to address the Executive Order, on January 29, 2017, I wrote an op-ed piece for the Huffington Post detailing how the Executive Order punished Iranian Americans who had proven every day that they were patriotic and fully supportive of national security concerns. As I explained in this article, the United States should not “turn a blind eye to the fact that the people of Iran have consistently demonstrated their affinity for the core values of our American democracy including liberty, freedom, and the rule of law. . . . [B]y using a broad brush to label all Muslims as enemies of America, the order ignores the fact that there has never been a single act of terror committed by anyone of Iranian descent in the United States.” This article was published online at http://www.huffingtonpost.com/entry/punishing-the-innocent-in-the-name-of-nationalsecurity_us_588d7674e4b017637794e356?u4ajuw4rcyvr96bt9.
26. The cumulative impact of the January 27 Executive Order, the shifting legal environment and now the new March 6 Executive Order continues to frustrate the mission of PAAIA, requiring constant vigilance and adjustment. Over the last few weeks, PAAIA has been forced to re-strategize its efforts for 2017 and 2018 to deal with the Travel Ban. PAAIA only has three full-time staff members serving PAAIA members and the Iranian-American community throughout the United States. All three of us have been devoting time and resources to activities and issues related to the Executive Order.
27. Advocating on behalf of the Iranian-American community against the Executive Orders and coordinating advocacy efforts throughout the United States has taken a substantial amount of PAAIA’s resources. Staff members from PAAIA have been in constant communication with Congressional staff over the past several weeks regarding a legislative
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response. PAAIA is supporting legislation that would rescind the travel ban and is encouraging members of Congress to co-sponsor the legislation.
28. PAAIA provides resources for how to contact senators and representatives and has been encouraging Iranian Americans to speak out against the Executive Order. PAAIA has been preparing members for meetings with their members of Congress, including a recent meeting with a representative in Houston, Texas. On Wednesday, February 15th, PAAIA reported on an open letter to President Trump signed by 80 prominent industry professionals urging him to reconsider the Executive Order.
29. PAAIA also continues to devote resources to providing information about the Executive Order to its members and the Iranian-American community. PAAIA, for example, issued two alerts to take action for community members on Monday, February 13th, and Thursday, February 16th. PAAIA also organized the release of a statement condemning the rise of hate crimes directed at immigrants as a result of the rise of anti-immigrant rhetoric, including rhetoric leading up to the “Muslim Ban.”
30. The March 6 Executive Order will continue to force PAAIA to divert time and resources. In addition to having to closely monitor the impact of shifting rules and procedures on its members and other Iranian Americans, including U.S. citizens and their family members, PAAIA will have to continuously research and analyze legal actions, monitor announcements and activity from the Department of Homeland Security, the State Department and other agencies, respond to and act upon concerns from Iranian Americans about the Executive Order, and rally the community to direct their concerns to their Congressional representatives.
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31. Many individuals continue to express concern about ongoing effects of the January 27 Executive Order, despite the rulings of the District Court in Washington v. Trump, Case No. 2:17-cv-141-JLR (W.D. Wash.) and other courts enjoining it.
32. PAAIA continues to receive requests for assistance from individuals concerned about the Executive Orders and uncertain about their impact on their personal lives. Because PAAIA does not provide legal services, I refer most of these individuals to Iranian-American organizations that provide legal assistance.
33. PAAIA has been in contact with members of the medical community regarding the potential consequences of the March 6 Executive Order on new physician training through residency programs at U.S. hospitals. Every year, graduating medical students apply to the National Resident Matching Program (known as “the match”), where they can obtain essential required additional medical training as residents. Approximately 1/5 of match participants are non U.S. citizens, including graduates of foreign medical programs seeking to train in the United States. The match program assigns individuals to specific slots through a highly competitive interview and application process, taking into account both applicant and program preference.
34. The Executive Orders have disrupted this process by creating disincentives for U.S. medical programs to rank individuals from the seven – and now six -- affected countries highly. A residency program may not want to risk a slot on an individual who may not be able to obtain a visa to work in the United States. Further, the final match decisions will be issued on March 18. Iranian nationals who “match” into U.S. programs and who will need to obtain a visa may be unable to accept the positions. Residency programs typically start on July 1. Thus even if some kind of waiver might apply, the increased uncertainty and potential delay might foreclose these opportunities altogether. This means that U.S. hospitals may lose out on their top ranked
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choices or be forced to incorporate considerations other than merit in finding the best match. And any limitation on merit and quality in competing for positions in residency programs has even larger implications for U.S. medical care. Iranian doctors and medical students have spoken out forcefully about the problems the Executive Orders are creating in the match program this year and in other aspects of medical education and the profession.1
35. When the March 6 Executive Order takes effect it will maintain a ban on Iranian nationals and Iranian Americans, who may be unable to obtain visas and refugee admissions under the Immigration and Nationality Act for months – and potentially even longer. The discrimination and animus based on religion and national origin under this policy will continue to demean and stigmatize the Iranian-American community. This new Executive Order still fails to explain why people of Iranian descent pose a greater risk to Americans than individuals from other nations not targeted by this ban. The continuation of this policy of exclusion will continue to adversely impact U.S. businesses, U.S. universities and U.S. based families. The IranianAmerican community is by far the largest community harmed by the Executive Orders.
1Ahmad Masri, M.D. and Mourad H. Senussi, M.D., Trump’s Executive Order on Immigration: Detrimental Effects on Medical Training and Healthcare, New England Journal of Medicine (Feb. 1, 2017), http://www.nejm.org/doi/pdf/10.1056/NEJMp1701251 (Attachment 2); Andrew Joseph and Eric Boodman, Trump’s Immigration Order “Causing Havoc” for Medical Students Awaiting‘Match Day, STAT (Feb. 2, 2017) https://www.statnews.com/2017/02/02/match-day-trump-medical-students/.
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Attachment 2

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The NEW ENGLAND JOURNAL of MEDICINE

Perspective

Trump’s Executive Order on Immigration — Detrimental Effects on Medical Training and Health Care
Ahmad Masri, M.D., and Mourad H. Senussi, M.D.​​

Trump’s Executive Order on Immigration

On January 27, 2017, U.S. President Donald Trump signed an executive order banning nationals of seven countries — Iran, Iraq,

Muslim majority, of which 40% were matched into a U.S.-based residency program.4
Furthermore, IMGs who train

Libya, Somalia, Sudan, Syria, and Yemen — from on a J-1 visa (a nonimmigrant visa

sponsored through the ECFMG Ex-

entering the United States for at and the National Resident Match- change Visitor Sponsorship Pro-

least 90 days, with the possibility ing Program (NRMP) published a gram [EVSP]) are required to

of a wider “Muslim ban” in the report in 2014 detailing the out- return to their home country for

works.1 Setting the broader ethical comes for IMGs of the 2013 Main 2 years or obtain a “J-1 waiver”

and political ramifications aside, Residency Match.4 It indicated the clinical job in order to stay in the

this order will have a detrimental number of applicants according to United States.5 J-1 waiver posi-

effect on graduate medical edu- country of citizenship at birth and tions are usually obtained through

cation (GME) and the U.S. health country of medical school attend- the Conrad 30 Waiver Program,

care system as a whole.

ed (detailed for countries with at which is intended to recruit phy-

In 2015, the Educational Com- least 50 applicants). In 2013, there sicians to serve in underserved

mission for Foreign Medical Grad- were 753 applicants whose coun- rural and inner-city areas of the

uates (ECFMG) reported that 24% try of citizenship at birth was United States.5 According to an

of practicing physicians in the Iran, Iraq, Libya, Sudan, or Syria; ECFMG ESVP report, in 2014–2015

United States are international 299 of these (40%) were matched there were 9206 sponsored J-1 phy-

medical graduates (IMGs).2 In the into a U.S.-based residency pro- sicians from 130 countries, and

2016 Main Residency Match, there gram.4 If the ordered ban expands 6 of the top 10 countries of origin

were 7460 IMGs who were not to include other countries with a — accounting for a total of 1879

U.S. citizens (21% of all appli- Muslim majority population, the J-1 physicians — have Muslim ma-

cants).3 Although there are no cur- number of potentially affected ap- jority populations (Syria, currently

rent published statistics on the plicants will increase significantly. 1 of the top 10 countries of origin

countries of origin of physicians In 2013, there were 2101 applicants and on the executive-order ban list,

in the United States, the ECFMG from 11 different countries with had 165 J-1 physicians in 2014–

n engl j med  nejm.org

1

The New England Journal of Medicine Downloaded from nejm.org by LADAN GOLESTANEH on March 8, 2017. For personal use only. No other uses without permission.
Copyright © 2017 Massachusetts Medical Society. All rights reserved.

Case 1:17-cv-00255-TSC
PERSPECTIVE

Document 35-2

FiledTr0um3p/1’s5E/x1ec7utivPeaOgrdeer1o0n7Imomf i2g1ra9tion

2015).4 Physicians with J-1 waivers are filling clinical jobs in areas of need. An executive order that has not taken into account the widespread ramifications may lead to further shortages of physicians in areas that are already in dire need.
For international medical students and graduates, pursuing medical training in the United States requires careful planning and considerable investment. Aside from meeting the requirements of one’s own medical school and home country, one has to sit for the U.S. Medical Licensing Examination Step 1, Step 2 Clinical Knowledge, Step 2 Clinical Skills, and possibly Step 3. After passing these exams, one applies through the Main Residency Match, which requires applying for a visitor visa (unless one is exempt), applying to a number of programs through the Electronic Residency Application Service, and traveling to the United States for in-person interviews. After this emotionally and financially draining process, one submits a Rank Order List and awaits the Match results.
This process usually requires at least 2 years of preparation, and only the cream of the crop of medical students and physicians from foreign medical schools match into U.S. residency programs — trainees who have shown aptitude and dedication, have worked hard, and have made a considerable financial investment in order to reach the pinnacle of graduate medical training. This grueling process represents “extreme vetting” at its best.
The executive order is thus det-

rimental to GME, a well-designed process that funnels hard-working IMGs into training positions that would otherwise remain unfilled. Since President Trump signed the order, there has been pandemonium among residents, fellows, and GME offices throughout the country. It has created much uncertainty and may well lead selection committees to reconsider their choices of applicants on the basis of country of origin. Currently, training programs are seeking advice from their GME departments and lawyers about ranking physicians from the seven banned countries and from all countries with a Muslim majority, as well as all applicants who require visas. Though hospitals and training program directors may be well intentioned and want to ensure that their matched physicians arrive by July 1 to begin their training in a timely manner, the ban is leading to inadvertent religious and racial discrimination.
The pathway to becoming a competent, well-trained physician is full of challenges, ranging from long hours and years, to life and job stresses, to financial debt. Physicians do not need further obstacles and worries imposed on them by orders that are not well thought out. Immigrants have made a long list of contributions to the U.S. health care system and to science in general — achievements that transcend country of origin, as well as religion, race, color, ethnic background, gender, and sexual orientation.
In the face of the executive order, we have seen an outpouring of

support from patients, colleagues, program directors, faculty, and hospital staff — all of whom honor the diversity that helps to make this country great. As one of our patients put it, “I voted for Trump, but there is no way I’m going to let him take you away, doctor!”
The views expressed in this article are those of the authors and do not necessarily reflect the positions of the University of Pittsburgh Medical Center.
Disclosure forms provided by the authors are available at NEJM.org.
From the Heart and Vascular Institute, University of Pittsburgh Medical Center, Pittsburgh.
This article was published on February 1, 2017, at NEJM.org.
1. Full executive order text:​Trump’s action limiting refugees into the U.S. New York Times. January 27, 2017 (https:/​/​www​ .nytimes​.com/​2017/​01/​27/​us/​politics/​ refugee-muslim-executive-order-trump.​ html). 2. Educational Commission for Foreign Medical Graduates. 2015 Annual report (http://www​.ecfmg​.org/​resources/​ECFMG -2015-annual-report​.pdf ). 3. National Resident Matching Program. Charting outcomes in the Match: international medical graduates: characteristics of international medical graduates who matched to their preferred specialty in the 2016 Main Residency Match. 2nd ed. September 2016 (http://www​.nrmp​.org/​wp-content/​uploads/​ 2016/​09/​Charting-Outcomes-IMGs-2016​.pdf ). 4. National Resident Matching Program and the Educational Commission for Foreign Medical Graduates. Charting outcomes in the Match: international medical graduates: characteristics of applicants who matched to their preferred specialty in the 2013 Main Residency Match. 1st ed. January 2014 (http://www​.ecfmg​.org/​resources/​ NRMP-ECFMG-Charting-Outcomes-in-the -Match-International-Medical-Graduates -2014​.pdf ). 5. U.S. Citizenship and Immigration Services. Conrad 30 Waiver Program (https:/​/​ www​.uscis​.gov/​working-united-states/​ students-and-exchange-visitors/​conrad-30 -waiver-program).
DOI: 10.1056/NEJMp1701251 Copyright © 2017 Massachusetts Medical Society.
Trump’s Executive Order on Immigration

2

n engl j med  nejm.org

The New England Journal of Medicine Downloaded from nejm.org by LADAN GOLESTANEH on March 8, 2017. For personal use only. No other uses without permission.
Copyright © 2017 Massachusetts Medical Society. All rights reserved.

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 108 of 219
EXHIBIT 5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 109 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF ALI ASAEI IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Ali Asaei, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I am an Iranian citizen. I first came to the United States on September 6, 2013 on an F-1 student visa. I obtained my master’s degree in electrical engineering at SUNY – New Paltz in December 2015.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 110 of 219
3. I then applied for and was granted F-1 OPT status, which allows me to perform work directly related to my major area of study for twelve months. My OPT status expires in June 2018.
4. Since August 2016, I have been working as a research assistant at the Nathan Kline Research Institute, which is part of the Research Foundation for Mental Hygiene (RFMH).
5. I live in Fort Lee, New Jersey. 6. As a research assistant, I complete MRI image processing of brains to understand brain structure as well as the structure of diseases like Alzheimer’s and Parkinson’s disease. Our goal is to learn enough about the brain to predict the occurrence of these and other diseases. The funding for this project comes from the National Institute of Health (NIH). 7. In addition to my work as a research assistant, I help write image processing software that has clinical and/or research applications. 8. Outside of my work at RFMH, I have also volunteered with a local refugee organization in Jersey City, New Jersey. 9. I was also recently featured in a New York Times article entitled, “Twitter Adds New Ways to Curb Abuse and Hate Speech,”
https://www.nytimes.com/2016/11/16/technology/twitter-adds-new-ways-to-curb-abuse-and-hatespeech.html?_r=0
10. I last saw my mother and sister in 2014, when they visited me in the United States on B-1 and B-2 tourist visas. I have not seen my brother or father since 2013.
11. My parents and sister have long been planning to visit the United States. I personally petitioned for visas for my family. My parents paid $160.00 each for their visa applications.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 111 of 219
12. Within a few years of applying, they were able to get a nonimmigrant visa appointment at the U.S. Embassy in Dubai. The appointment was scheduled for February 15, 2017.
II. Harm Caused by the January 27, 2017 Executive Order: 13. As a result of the January 27, 2017 Executive Order (EO), the U.S. Embassy in
Dubai sent my parents an email on January 31, 2017 notifying them that their visa appointment has been cancelled.
14. My parents’ and sister’s visa appointment was eventually rescheduled for February 16, 2017. They traveled to the U.S. Embassy in Dubai for the appointment.
15. My parents’ and sister’s visas were denied during their interview. When they asked the consular official for the reason for their denial, they were told by the consular official, “we cannot give you a reason for the denial.”
III. Harm From March 6, 2017 Executive Order: 16. President Donald Trump signed an Executive Order on March 6, 2017 (March 6
Executive Order) prohibiting the issuance of visas to Iranian citizens. 17. If and when the March 6 Executive Order is enforced, it is unlikely that I will be
able to extend or apply for new work authorization when my current OPT status expires in June 2018. As a result, I will be forced to quit my job and leave the United States permanently.
18. In addition, if and when the March 6 Executive Order is enforced, the chances that my parents and sister could re-apply for a new visa to visit me in the United States will be severely diminished. The prospect of remaining separated from my family has caused me great mental and emotional distress.
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 112 of 219 19. I am greatly saddened by the fact that I live in a country in which Iranians —
good people like my parents and sister — are unable to visit. 20. As a result of the prospect that I will be unable to renew my work authorization in
the future, and due the enforced separation from my family, I have decided to leave the United States shortly and return to Iran.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 113 of 219 I, Ali Asaei, declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge. Executed this _9_ day of March, 2017, in _Orangeburg, NY_.
_____/s/ Ali Asaei________ Ali Asaei
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 114 of 219
EXHIBIT 6

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 115 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF SHIVA HISSONG IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Shiva Hissong, hereby declare and state as follows: 1. My name is Shiva Hissong. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I reside in Spokane, Washington. In November 2016 I received authorization to work in the United States but am currently a stay-at-home mother. My husband works as an architect in Spokane, and owns an architecture firm and an advertising agency.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 116 of 219
3. I am a citizen of Iran and a Green Card holder (legal permanent resident) of the United States.
4. I am a Muslim and adhere to the religion of Islam. 5. I was a student in Italy from August 2012 until March 2016. I was there on a student visa and earned credits toward my Bachelor’s Degree in fashion. While studying in Italy, I met my husband in Rome. 6. After my future husband and I got engaged, I applied for and received a K-1 visa. 7. I entered the United States on this K-1 visa on March 3, 2016. 8. My husband and I were married on April 17, 2016 and hosted a wedding ceremony on August 28, 2016 in Spokane, Washington. 9. My parents reside in Tehran, Iran. They are Iranian citizens. My father has been ill with Parkinson’s disease for the past ten years, and his condition has significantly deteriorated in the last three to four years. 10. My parents were unable to obtain visas to attend my wedding due to a lack of visa appointments at the United States Embassies in the United Arab Emirates, Armenia, or Turkey. 11. Subsequently, my parents decided that they would try to visit the United States for the birth of their grandson. 12. In October 2016, my parents were able to get a visa appointment at the United States Embassy in Yerevan, Armenia. The interviewing officer informed my parents that they had to undergo an administrative interview that would take approximately three to six months. 13. My son was born on November 28, 2016. My parents were not present for his birth pending their visa applications and administrative process. They have not yet met my son.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 117 of 219
14. In light of my father’s illness and the extended application process for my parents to obtain a visa to visit the United States, my parents and I made plans to meet in Dubai, United Arab Emirates in March 2017 so that my parents could meet their grandson.
II. Harm Suffered Post January 27, 2017 Executive Order:
15. Prior to my parents completing an administrative interview for their visa applications, President Donald Trump signed an Executive Order on January 27, 2017 (January 27 Executive Order) immediately prohibiting the issuance of visas to Iranian citizen and prohibiting the entry of Iranian citizens into the United States.
16. Following the signing of the January 27 Executive Order, the United States Embassy in Yerevan, Armenia did not, to the best of my knowledge, issued any electronic mail or guidelines to my parents with respect to their applications.
17. As a result of the confusion and uncertainty surrounding my parents’ visa applications under the terms of the January 27 Executive Order, I did not know if my parents would be able to visit the United States and meet my son while my father is healthy enough to travel.
18. The morning after the January 27 Executive Order was signed, the immigration attorney that I had retained advised me that I should not leave the United States due to the January 27 Executive Order. I became very concerned about my ability to exit and reenter the United States, and decided to cancel my family’s visit to the United Arab Emirates in March 2017.
19. In addition, prior to the signing of the January 27 Executive Order, my husband and I had purchased plane tickets to visit Amsterdam, the Netherlands. Following the signing of
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 118 of 219
the January 27 Executive Order, I became concerned about my ability to exit and reenter the United States and have subsequently decided not to visit the Netherlands as originally planned.
20. I have received no guidance, information, clarity, instruction, or correspondence from the United States government or my attorney concerning the issuance of visas and/or whether my parents’ visas will be issued in course or whether it will not be issued under the terms of the January 27 Executive Order.
21. I very frequently check the website of the U.S. Embassy in Armenia for any updates on my parents’ visa applications. Since the January 27 Executive Order was signed, the website has not indicated whether my parents’ visa was revoked (and, if so, whether it was reinstated); whether the processing of their visa application has been suspended; or whether their visa is being processed.
22. I have checked the website of the U.S. Embassy in Armenia frequently for any updates on my parents’ case or the issuance of visas generally. The last time I checked, the Embassy website stated that visa processing is currently delayed.
III. Harm From March 6, 2017 Executive Order:
23. President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
24. The terms of the March 6 Executive Order prohibit the approval and issuance of my parents’ tourist visa. I am concerned that if and when the March 6 Executive Order goes into effect, my parents’ tourist visa will be denied and they will be unable to travel to the United States while my fathers’ health still allows him to do so. As a result my parents will be unable to visit me and my family and meet their grandson for the first time.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 119 of 219 5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 120 of 219
EXHIBIT 7

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 121 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISCTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-cv-255

DECLARATION OF JANE DOE #1 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #1, hereby declare and state as follows: 1. My name is Jane Doe #1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I am 28-years-old and currently reside in San Diego, California. I am employed with the City of San Diego. I have my Master’s Degree in city planning from San Diego State University. 3. I am a dual citizen of the United States and Iran. 4. I am a Muslim and adhere to the religion of Islam.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 122 of 219
5. My family sold all of their belongings and assets in Iran and immigrated to the United States in 2001. I was 11-years-old at the time and moved with my mother, father, and sister.
6. It took approximately twelve (12) years for my family to be approved to become Green Card holders (legal permanent residents). My family has continued to live in the United States since 2001 and myself, my mother, my father, and my sister are all United States citizens.
7. Both of my parents are small business owners in the United States. 8. In 2013, I met my fiancé in San Diego while he was visiting the United States on a tourist visa. He is 29-years-old with a Master’s Degree in engineering from Sharif University of Technology in Tehran, Iran. 9. After traveling to Iran several times to visit my fiancé, we got engaged to be married in October of 2015. Thereafter, we immediately engaged the services of a Los Angeles, California immigration attorney in December of 2015 to assist us with the visa process for my fiancé to move to the United States. 10. My fiancé’s petition for K-1 visa was submitted in February 2016 and was approved by April of 2016. The case was created by May of 2016. 11. In October 2016, my fiancé and I traveled to Abu Dhabi for the immigrant visa interview. Thereafter, the visa was adjudicated and approved, and we were advised that “additional administrative processing” could take up to six months.
II. Harm Caused by the January 27, 2017 Executive Order:
12. Subsequent to the approval in October of 2016, but prior to my fiancé’s visa being issued, President Trump signed an Executive Order on January 27, 2017 (January 27 Executive
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 123 of 219
Order) immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of Iranian citizens into the United States.
13. I have personally checked the U.S. State Department website every day since October 2016 for status updates on my fiancé’s visa. The last entry was updated on January 10, 2017 containing only general information.
14. To date, I have paid approximately $5,000.00 in travel expenses to Abu Dhabi for my fiancé’s immigrant visa interview. I have also paid approximately $3,500.00 in legal fees.
15. I received no guidance, information, clarity, instruction, or correspondence from the United States government or my attorney concerning the issuance of visas and/or whether my fiancé’s approved visa will be issued in course or whether it will not be issued under the terms of the January 27 Executive Order.
16. I checked various internet websites and blogs every day since January 27, 2017 in an attempt to gather further information about the issuance of visas.
17. I called the U.S. Embassy in Abu Dhabi. However, they did not provide me with any information on my fiancé’s visa.
18. I called U.S. Senator Kamala Harris in hopes that her staff can help move my fiancé’s case along, or at least provide me with information on its status. However, Senator Harris’s office has also not helped me.
19. As a direct result of the uncertainty caused by the Executive Orders, I have been extremely anxious, stressed, unable to sleep and eat, and nervous because I am unclear about whether I will be able to be reunited with my fiancé and get married.
III. Harm From March 6, 2017 Executive Order:
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 124 of 219
20. President Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
21. The terms of the March 6 Executive Order prohibit the issuance of my fiancé’s visa. I am concerned that if and when the March 6 Executive Order goes into effect, my fiancé’s K-1 visa will never be issued, he will be unable to travel to the United States, and we will be unable to get married in the United States as planned.
22. Prior to the January 27 and March 6 Executive Orders, my fiancé and I had been planning an extravagant wedding ceremony in the United States that was scheduled for 2018.
23. To date, I have spent hundreds of hours planning my wedding and I have executed contracts and paid $2,500.00 as a down payment to secure a wedding venue. An additional $2,500.00 payment will become due in May of 2017. As a result of the uncertainty surrounding my fiancé’s visa under the terms of the March 6 Executive Order, I don’t know if I should continue to make payments to the wedding venue and/or otherwise continue planning our wedding ceremony.
24. After the March 6 Executive Order was signed, I again called the U.S. Embassy in Abu Dhabi but was still unable to receive any information. I continue to check the U.S. State Department website on a daily basis, but there have been no updates posted.
25. I have received no guidance or information from the United States government regarding my fiancé’s K-1 visa in the wake of the March 6 Executive Order.
26. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my fiancé for participating in this action.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 125 of 219 I, Jane Doe #1, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _8_ day of March, 2017, in _San Diego, CA_.
_____/s/ Jane Doe #1_____ Jane Doe #1
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 126 of 219
EXHIBIT 8

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 127 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF JANE DOE #4 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #4, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background:
2. I currently reside in San Francisco, California. I am employed full time with an architectural firm.
3. I am an Iranian citizen and was granted asylum in the United States in June 2016. I am currently in the process of obtaining my Green Card. I am a member of the Erfran-e-

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 128 of 219
Halgheh, also referred to as the Circle of Mysticism. I originally entered the United States with a student visa. I applied for asylum in the United States approximately three and a half years ago because I feared religious persecution in Iran. Members of my spiritual group have recently been killed by Iranian officials and I am unable to return to Iran.
4. I have lived in the United States since fleeing Iran in 2013. My parents still live in Iran and were planning to visit me this year. My parents applied for tourist visas in November 2016 at the U.S. Consulate in Istanbul, Turkey, and started the process of making travel arrangements to see me. II. Harm Suffered Post January 27, 2017 Executive Order:
5. On January 27, 2017, President Trump issued an Executive Order (January 27 Executive Order) restricting the issuance of visas to Iranian citizens, and preventing Iranian immigrants and nonimmigrants from entering the United States.
6. I was instructed by my immigration attorney not to travel outside of the United States because of the January 27 Executive Order. I had been planning to travel this year to Amsterdam to visit some friends who are currently living in Europe. My friends will be returning to Iran later this year, and when that happens I will be unable to see then because I cannot return to Iran.
7. The Executive Order also put into jeopardy the plans of my parents to visit my in the United States.
III. Harm from March 6, 2017 Executive Order
8. President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens effective March 16, 2017.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 129 of 219
9. The terms of the March 6 Executive Order prohibit the approval and issuance of my parents’ tourist visas. I am concerned that if and when the March 6 Executive Order goes into effect, my parents’ tourist visas will be denied and they will be unable to travel to the United States.
10. My parents have called the U.S. Consulate in Istanbul but have not been able to receive any information about their tourist visa. We have also checked the status of their visa application online but there have been no updates on the status.
11. I do not have any family in the United States; all of my family is in Iran. I am close to my family and the physical separation is very emotionally and mentally difficult for me. I am unable to visit my parents in Iran because it is unsafe for me to return there. If and when the March 6 Executive Order is enforced, I will face indefinite separation from my parents and the rest of my family.
12. I am afraid that the State Department or other branches of the federal government will take retaliatory action against me for being a party to this action. I am especially concerned about retaliatory actions impacting my immigration status as I am still in the process for applying for my Green Card, and about retaliatory actions affecting my parents’ visa application.
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 130 of 219 I, Jane Doe #4, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _7_ day of March, 2017, in _Cupertino, CA_.
_____/s/ Jane Doe #4______ Jane Doe #4
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 131 of 219
EXHIBIT 9

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 132 of 219

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #8 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #8, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to the United States as a refugee.
3. I grew up in Iran in a traditional Muslim household. The Muslim community in Iran has not been accepting of my sexual orientation.
4. As a teenager living in Iran I did karate. At one karate event that I attended at the age of sixteen, I met a man who was a year older than me. We became friends. When I was
1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 133 of 219
nineteen, he asked me to marry him. I told him I could not marry him because I was a lesbian and in love with someone else. At first, the man seemed to accept my rejection of his marriage proposal.
5. Later, when I was twenty years old, I was the editor of an underground LGBT magazine, administrator of an LGBT rights group and counselor to other LGBT individuals. I had also published a fiction book about a transgender man which discusses sex trafficking.
6. When I was twenty one years old, the man invited me to his sister’s house to show me some LGBT books and materials. When I went to his sister’s house, he raped me. After that, he continued to harass me and threaten me. He would sexually assault me about once per month. One time, when we were smoking hookah, he burned my hand with the hookah coals. The mark from this burn remains on the palm of my hand even now.
7. I was unable to extricate myself from this relationship because the man began to blackmail me. He found out that I was the editor of an underground LGBT magazine and threatened to expose me to the government if I did not marry him. His brother and other members of his family worked for an office of the Iranian government that monitors the activities of citizens, and his uncle was the regional head of a charitable organization that has ties to the Islamic Revolutionary Guard Corps (also known as Sepah). I knew that he had the power and connections to follow through on his threats. He began to threaten the safety of my sister. He also told me that he would expose the fact that I was a lesbian to my family and that they would be extremely ashamed of me, and also be placed in physical danger as a result. I became very scared for my physical safety as well as the physical safety of my family.
8. I fled to Turkey in June 2014. When I fled, I wrote an email to my friend, Jane Doe #9, who is now my partner and fiancée. She followed me to Turkey six months later. After a
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 134 of 219
few months in Turkey, we became a couple. Recently, I proposed to her and we are now engaged to be married.
9. My life in Turkey has been very difficult. Many people in Turkey are not accepting of my sexual orientation. I have worked in the textile industry while here in Turkey. I often work 14-hour days and get paid barely enough to buy minimal food and to pay our rent. We can’t afford to buy medicine when we are sick. Our house is full of mold and we sleep on a sofa. There is only one table and one chair in the room.
10. However, I have not given up on my advocacy while in exile in Turkey. I received funds from Outright Action International, a leading human rights organization, to write and publish one booklet in a three-part series. The booklet I wrote describes different types of sexual orientations and terminologies to be used by reporters and media when writing articles about the LGBT community. The booklet has been published by a publisher in Canada. I also worked for a human rights organization called Justice for Iran until February 2016 as a communications officer, managing their media, Facebook presence, and twitter feed. I will soon begin working for another London-based LGBT organization focusing on lesbian and transgender women.
11. My current situation, along with that of my partner’s, is unsustainable. Because of my sexual orientation, I was unsafe in Iran and I am unsafe in Turkey. I have applied for refugee status and would like to be resettled to the United States where I will be safe from persecution and able to find stable employment.
12. I reached out to the Office of the UN High Commissioner for Refugees (UNHCR) soon after I arrived in Turkey in June 2014 and sought to be admitted to a Refugee Admissions Program. After a lengthy interview and vetting process, including multiple interviews in 2015,
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 135 of 219
UNHCR determined that I had refugee status and provided me with documentation confirming my designation as a refugee. UNHCR first referred me for resettlement in Canada. However, my partner and I learned that Canada would not accept both of our applications together. I want to be resettled with my partner. In December 2016, UNHCR referred me to the United States as a candidate for resettlement through the Refugee Admissions Program (USRAP). I know that the U.S. Refugee Admissions Program has admitted to the program many same-sex applicants.
13. In December 2016, I was interviewed by the International Catholic Migration Commission (ICMC), which is a State Department contractor that interviews refugees who have been referred for possible resettlement to the United States. I was waiting for my second interview to be scheduled when the Executive Order was signed. II. Harm Suffered Due to the January 27, 2017 Executive Order:
14. I am aware that, on January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) that negatively impacts the refugee admissions process for citizens from certain countries, including Iran.
15. After the January 27 Executive Order was signed, the ICMC website posted a notice informing me that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the United States due to the January 27 Executive Order. I was very distraught. I have been waiting for this opportunity for so long and it is my only hope to escape the horrible living conditions in Turkey and Iran. Because of the January 27 Executive Order I am very concerned about whether I will ever be approved by the United States to participate in the Refugee Admissions Program.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 136 of 219
16. In February, I learned from news reports that the January 27 Executive Order was halted by U.S. courts. When I heard this news, I sent an email to ICMC asking whether my second interview could be scheduled.
17. On February 8, 2017, I received the following email response from ICMC: “Dear applicant, Thank you for your email, Currently, your case is pending USCIS interview to be scheduled. Be advised that your case status will not change during the suspension period. As stated in the Executive Order signed by the President, the United States government has suspended all refugee admissions for 120 days effective January 27, 2017. The Resettlement Support Center (RSC) Turkey and Middle East (TuME) will continue to maintain all case information and biodata on file for all refugees who have been referred for resettlement to the United States. You may write to info.rsc@icmc.net or call +90 212 219 2055 (Monday – Friday from 13:00-15:00) with questions or if you wish to provide information on emergency situations or update your contact information. Please note the RSC will not be able to provide further information regarding the 120-day suspension at this time.” 18. I emailed ICMC again on February 17th and, on February 19th, received an
identical email response. 19. Since receiving those emails from ICMC, I have received no information or
communication from ICMC regarding my and my partner’s second interview.
III. Harm From March 6, 2017 Executive Order:
20. I am aware that President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) that negatively impacts the refugee admissions process for citizens from certain countries, including Iran, effective March 16, 2017.
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 137 of 219
21. I checked the ICMC website after the March 6 Executive Order was signed. It stated that refugees who have not already been approved for admission to the United States and scheduled for departure — refugees like me and my partner — are impacted by the Executive Order.
22. I am currently in limbo and do not know what will happen with my USRAP application. If and when the March 6 Executive Order is enforced, I will be unable to move to the United States with my partner. I am unable to return to Iran for fear of being exposed as an LGBT person and subjected to violence by the Iranian government. I also fear violence here in Turkey.
23. I fear that the U.S. government will retaliate against me because of my involvement in this lawsuit. I am concerned that my involvement will impact my acceptance in the Refugee Admission Program and harm my chances to be approved by the United States. I also fear persecution from the Iranian government if it were to become aware of my application for refugee status in the United States, or my involvement in this lawsuit.
6

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 138 of 219 I, Jane Doe #8, declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed this _9_ day of March 2017, in _Denizli, Turkey_.
_____/s/ Jane Doe #8_____ Jane Doe #8
7

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 139 of 219
EXHIBIT 10

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 140 of 219

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #9 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #9, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to the United States as a refugee.
3. I grew up in Iran in a traditional Muslim household. The Muslim community in Iran has not been accepting of my sexual orientation or my gender identity. I am a transgender and LGBT woman.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 141 of 219
4. When I was a teenager, I taught a class about metaphysics and the philosophy of the mind to others my age in a connection with a program sponsored by the Iranian Department of Education. My class became very popular. The imam responsible for running the local Department of Education program noticed the popularity of my class and believed I was smart. This imam tried to force me to work for the Islamic Revolutionary Guard Corps (known as IRGC or Sepah), but I refused to do so.
5. One day, someone from the Ministry of Intelligence of the Islamic Republic of Iran (also known as Ettelaat or MOIS) came to my school, pulled me out of class without my parents’ permission, and took me back to their offices. I believe that the Ettelaat had found out about my gender identity and sexual orientation and were targeting me on that basis as well as due to my views on metaphysics. At their offices the Ettelaat officials slapped me in the face, punched me in the throat, and kicked me with their military boots. After that, they came to my house and took all of my books and my home computer. They also conspired to get me kicked out of school by ensuring that my teachers gave me a “zero” on each of my exams, regardless of the actual grade I had earned. When I tried to re-enroll in a different high school, I was not allowed to do so.
6. I felt physically unsafe in Iran and feared further violence from the Ettelaat or other parts of the Iranian government.
7. I heard from my friend, Jane Doe #8, who is now my partner, that she had run away to Turkey. Six months later, I also fled from Iran to Turkey. Recently, my partner proposed to me, and we are now engaged to be married.
8. I have been living in exile in Turkey since December 2014. My life in Turkey has been very difficult. Many people in Turkey are not accepting of my sexual orientation or my
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 142 of 219
gender identity. Much of Turkish society is transphobic and homophobic. Finding employment as a transgender woman in Turkey is difficult. I have been fired from many jobs just for being transgender. My partner and I are living in poverty. The law and the Turkish police do not protect us from the abuse we face at the hands of employers and neighbors. I was raped in Turkey, but because I do not speak Turkish and because the Turkish police are not sympathetic to people like me, there was nothing I could do.
9. A few times I went to get laser facial hair removal. The doctor and her assistant were so transphobic that they intentionally put the laser device in my eye. During another session, they put the laser device on my head, causing the hair on my head to fall out. I had to stop getting laser hair removal. Now, I only leave the house once a week. I feel like I am living in prison.
10. Because of my sexual orientation and my gender identity, I was unsafe in Iran and I am unsafe in Turkey. I would like to be resettled to the United States where I will be safe from persecution and able to find employment.
11. I reached out to the Office of the UN High Commissioner for Refugees (UNHCR) soon after I arrived in Turkey and sought to be admitted to a Refugee Admissions Program. After a lengthy interview and vetting process, UNHCR determined that I had refugee status and provided me with documentation confirming my designation as a refugee in April 2016. In December 2016, UNCHR referred me to the United States as a candidate for resettlement through the U.S. Refugee Admissions Program (USRAP). I am now waiting for the decision of the United States on acceptance to the program. I know that the U.S. Refugee Admissions Program has admitted to the program many same-sex applicants and I am waiting to be processed.
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 143 of 219
12. In December 2016 my partner and I had our first interview with the International Catholic Migration Commission (ICMC), which is a State Department contractor that interviews refugees who have been referred for possible resettlement to the United States. I then waited for our second interview to be scheduled.
II. Harm Suffered Due To January 27, 2017 Executive Order:
13. I am aware that, on January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) that impacts the refugee admissions process for citizens from certain countries, including Iran.
14. After the January 27 Executive Order was signed, the ICMC website posted a notice informing me that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the United States due to the January 27 Executive Order. I was very distraught when I heard this news. I have been waiting for this opportunity for so long and it is my only hope to escape the horrible living conditions in Turkey and Iran. Because of the January 27 Executive Order, I am very concerned about whether I will ever be approved by the United States to participate in the Refugee Admissions Program.
15. In February, I learned from news reports that the January 27 Executive Order was halted by U.S. courts. When I heard this news, my partner sent an email to ICMC asking whether our second interview could be scheduled.
16. On February 8, 2017, we received the following email response from ICMC: “Dear applicant, Thank you for your email, Currently, your case is pending USCIS interview to be scheduled. Be advised that your case status will not change during the suspension period.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 144 of 219
As stated in the Executive Order signed by the President, the United States government has suspended all refugee admissions for 120 days effective January 27, 2017. The Resettlement Support Center (RSC) Turkey and Middle East (TuME) will continue to maintain all case information and biodata on file for all refugees who have been referred for resettlement to the United States. You may write to info.rsc@icmc.net or call +90 212 219 2055 (Monday – Friday from 13:00-15:00) with questions or if you wish to provide information on emergency situations or update your contact information. Please note the RSC will not be able to provide further information regarding the 120-day suspension at this time.” 17. My partner sent another email to ICMC on February 17th, and received the same email response on February 19th. 18. Since we received those emails from ICMC, I have received no information or communication from ICMC regarding our second interview.
III. Harm From March 6, 2017 Executive Order:
19. I am aware that President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) that negatively impacts the refugee admissions process for citizens from certain countries, including Iran, effective March 16, 2017.
20. My partner checked the ICMC website after the March 6 Executive Order was signed. It stated that refugees who have not already been approved for admission to the United States and scheduled for departure — refugees like me and my partner — are impacted by the Executive Order.
21. I am currently in limbo and do not know what will happen with my USRAP application. If another Executive Order is signed that delays or blocks the refugee applications of Iranians to the USRAP, I will be unable to move to the United States with my partner. I am
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 145 of 219 unable to return to Iran for fear of being subjected to violence by the Iranian government. I also fear violence here in Turkey.
22. I fear that the U.S. government will retaliate against me because of my involvement in this lawsuit. I am concerned that my involvement will impact my acceptance in the Refugee Admission Program and harm my chances to be approved by the United States. I also fear persecution from the Iranian government if it were to become aware of my application for refugee status in the United States, or my involvement in this lawsuit.
6

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 146 of 219 I, Jane Doe #9, declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed this _9_ day of March, 2017, in _Denizli, Turkey_.
_____/s/ Jane Doe #9______ Jane Doe #9
7

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 147 of 219
EXHIBIT 11

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 148 of 219

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #10 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #10, hereby declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am a citizen of Iran currently living in the United States. 3. I was born in Iran and met and married my husband in Iran. My two sons were born in Iran.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 149 of 219
4. While living in Iran, I felt unsafe. There are a lot of societal pressures on women in Iran. Women are expected to behave a certain way and dress a certain way and it is dangerous for them not to meet these expectations. There are also societal pressures on families. There were also other factors that made Iran a bad place to live: the pollution, and other health safety hazards. I was very concerned about the type of life my sons would be able to have in Iran.
5. My sister lives in Sweden. When I felt unsafe in Iran and experienced mental anguish as a result of these feelings, I confided in my sister. My sister is a Christian and she told me about Christian teachings and Christianity. Christianity began to appeal to me. However, I did not know any Christians in Iran, and while I lived in Iran I could not outwardly identify as a Christian.
6. I came to the United States in December 2015. I felt that God intended for me to come to the United States. I converted to Christianity in the United States. I now identify as Christian. I petitioned for asylum for me and my sons on the basis of religious persecution. I was granted asylum here in the United States.
7. I did not come to the United States for economic reasons. My husband and I were financially secure in Iran.
8. My husband remains in Iran. I fear that the Iranian government will do something to harm him because I am a Christian. I fear for my husband’s safety. I also fear for my husband’s health. Because he is in Iran without us, and life is difficult in Iran, I worry that his health will deteriorate and he will have a heart attack or another physical ailment.
9. My husband is a Muslim. However, he is not a practicing Muslim. I hope that he too will convert to Christianity. I am working on him to do so.
10. I submitted an I-730 Asylee Relative Petition on behalf of my husband recently.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 150 of 219
II. Harm Suffered Under January 27, 2017 Executive Order or any Subsequent Executive Order That Affects Relative Petitions:
11. I am aware that, on January 27, 2017, President Trump signed an Executive Order (EO) restricting entry into the United States for citizens from certain countries, including Iran.
12. If the January 27 Executive Order is enforced, or any subsequent Executive Order is issued which affects relative petitions, my plans to have my husband join his family in the United States will be ruined.
13. I am very anxious for my husband to join me and my sons in the United States. I worry for his safety and health every day. If my husband’s petition is delayed, or worse, denied, I am not sure whether I will be able to deal with this fact emotionally. I am also concerned that my husband’s health will deteriorate if he is unable to be reunited with his family here.
14. I cannot go back to Iran for fear of religious persecution. If my husband cannot join his family here, we will be separated indefinitely.
15. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that my involvement will impact my husband’s I-730 petition.
16. I declare that the statements I have made above have been correctly translated into English from Persian, as they have been read to me in their entirety and they are my true and correct statements.
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 151 of 219 I, Jane Doe #10, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _28_ day of February, 2017, in _San Jose, CA_.
______/s/ Jane Doe #10______ Jane Doe #10
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 152 of 219
EXHIBIT 12

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 153 of 219

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #11 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #11, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am a dual citizen of Iran and France. 3. My father is a French citizen. He lives in Paris, France.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 154 of 219
4. My mother is an Iranian citizen and a naturalized French citizen. My mother married my stepfather, who is a U.S. citizen, a year ago. They have lived in Los Angeles, California for the last few years. My mother is a legal permanent resident of the United States.
5. My cousins also live in the Los Angeles area. 6. My twin sister is currently in the Los Angeles area. 7. My mother’s family lives in Iran. Many of my friends live in Iran as well. 8. I completed high school in France. After high school, I studied law at a French University. I made and still have many friends in France. During my studies, I completed an internship with the Consulate General of France in Los Angeles. I used the internship at the French Consulate to start building my professional network in the United States. 9. Upon completion of my law program in France, I applied and was accepted to Cornell University’s Master of Laws (LLM) program. The LLM degree is an internationally recognized postgraduate law degree often pursued by those like me who hold an undergraduate law degree. LLM students are eligible to work in the United States, even without sponsorship by a specific employer, for one year after graduation. My LLM degree will also allow me to sit for the New York Bar Exam, which I plan to study for and take in July 2017. 10. In connection with my LLM program, I applied for and received an F-1 visa. My visa expires in June 2021. I came to the United States in August 2016 to start my LLM program. I will graduate from my program in May 2017. 11. At Cornell, I am a member of a legal assistance clinic. As part of this clinic, I am conducting an advocacy project focusing on January 27 Executive Order issued by President Trump banning citizens of seven predominantly Muslim countries from entering the United States. More specifically, the project explores the effects of the immigration ban on the
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 155 of 219
numerous Iranian students and scholars studying and researching in U.S. universities in the fields of science and technology, and its harmful consequences on the progress of American science. I created a questionnaire as part of this research, sent out to Iranian students and scholars from various universities across the country including Cornell University, University of California Berkeley, University of California Los Angeles, Stanford University and MIT. The data reveals that most of these Iranians are visa holders with a significant number of women. The data also reveals that most of these Iranians are in the United States as PhD candidates. The others are in their majority graduate students. Finally, the rest are either full-time professors or visiting professors. The majority of the individuals who filled out the questionnaire are in the field of electrical engineering. The majority of them have made publications. This shows their important contribution to the progress of science and technology.
12. I hope to gain employment with a private law firm when I graduate from Cornell. I have submitted applications to law firms specializing in corporate law, as well as entertainment law, on both the West and East coasts of the United States. I have also applied to positions at U.S. and British law firms with offices in France.
13. I have had several interviews with the offices of U.S. and British firms located in France.
14. My first choice would be to receive an offer to work at a law firm in the United States. I believe that my international background would be an asset to a firm with internationally-focused clients such as multinational corporations.
15. I would like to settle down in the United States in the long-term as well. I hope to apply for legal permanent resident status in the future.
II. Harm from March 6, 2017 Executive Order
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Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 156 of 219
16. I am aware that President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) restricting entry into the United States for citizens from certain countries, including Iran.
17. This past winter I travelled to France to see my father. After visiting France I travelled to Iran to see my mother’s family and to take care of administrative matters, such as renewing my Iranian passport and National Identity Document. I returned to the United States just a few days before the President Donald Trump's first January 27, 2017 Executive Order was signed. I was lucky. If I had returned a few days later, I would have been blocked from entering the United States.
18. I was planning on visiting my father for my upcoming spring break, but have chosen not to as I fear being denied entry to the United States.
19. If and when the March 6 Executive Order is enforced, it will prevent me from renewing my visa or applying for work authorization. I will be forced to leave the United States. If I leave the United States and am not able to receive a visa to re-enter, I will be separated from my mother, sister, and friends in Los Angeles indefinitely. My plans to apply for permanent legal residency in the United States will also be thwarted.
20. If I am not able to receive work authorization in the United States, my employment prospects will be diminished because prospective employers in the United States will not want to hire me.
21. I also fear that, because the March 6 Executive Order blocks me from receiving visas to enter the United States in the future, my employment prospects with any law firms with offices in France will also be diminished. Most of the jobs to which I am currently applying would require me to travel between the United States and other countries. The practice of law at
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 157 of 219 a firm that has multinational corporations as clients requires attorneys to travel abroad. I fear that if I am unable to travel, my chances of employment at such a law firm will be significantly diminished. Or, even if I am hired at such a firm, my ability to participate in many of the firm’s cases — and, as a result, my ability to advance within the firm — will be severely hampered.
22. Even if I am somehow able to receive authorization to work in the United States, I also fear discrimination from employers who, due to the March 6 Executive Orders singling out the citizens of Iran, will generally not wish to hire Iranian-Americans or will feel that it is too risky to do so regardless of their legal status.
23. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that my involvement will impact any future visa applications by me or my family, or that I will encounter problems when attempting to re-enter the United States after traveling abroad.
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 158 of 219 I, Jane Doe #11, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _10_ day of March, 2017, in _Ithaca, NY_.
_____/s/ Jane Doe #11______ Jane Doe #11
6

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 159 of 219
EXHIBIT 13

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 160 of 219

THE UNITED STATES DISTRICT COURT

Pars Equality Center,

FOR THE DISTRICT OF COLUMBIA )

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #12 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #12, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen with legal permanent resident status in France. I am an F-1 student visa holder currently living in the United States and completing my sophomore year of my undergraduate degree at a four-year university.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 161 of 219
3. While I was born in Iran, I spent most of my life in France and grew up in France. My immediate family lives in France or Iran. I decided to complete my college degree in the United States because I am interested in American culture and politics and wanted to experience life in the United States. I am planning to return to France to find a job after I complete my college degree.
4. I am required to renew my F-1 student visa, which is a multiple-entry visa, every two years.
5. In order to renew my visa, I have to travel to the U.S. embassy in Paris, France, because it is the embassy that issued my visa. I am planning to finish the current semester and travel to France during my summer vacation in 2017 to visit my family and renew my visa.
6. I am also planning to travel to France during my upcoming spring break to renew my French residency card. I am required to travel to France to renew my residency card in person within a specific time period; I am not able to travel to France any earlier or later than the specific time period allotted. If I do not travel to France during spring break, I will lose my legal permanent resident status in France.
II. Harm Suffered Under January 27, 2017 Executive Order
7. I am aware that, on January 27, 2017, President Trump signed an Executive Order (EO) restricting entry into the United States for citizens from certain countries, including Iran.
8. When I learned that the President was planning to sign an Executive Order that might impact visa-holders from Iran, I contacted an organization that provides assistance for international students and asked how the Executive Order would impact me. The organization told me to contact the Iranian embassy, which in turn referred me to the U.S. embassy in France.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 162 of 219
I called the U.S. embassy in France multiple times, and no one could give me a clear answer as to how the Executive Order impacted my student visa.
9. The week after the Executive Order was signed, my university sent an email to all the students on campus explaining that over 50 Iranian students and over 20 Iranian scholars were being impacted by the Executive Order. The university also made counselors and other therapeutic resources available to students like me who were impacted by the Executive Order.
III. Harm from March 6, 2017 Executive Order
10. I am also aware that President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
11. As a result of the March 6 Executive Order, I am very concerned that I will be unable to complete my college degree in the United States. If and when the March 6 Executive Order is enforced, I will be unable to receive a new F-1 visa when I travel to Paris, France this summer. If I do not renew my F-1 visa as required I will be unable to return to the United States to complete my studies.
12. I will suffer greatly if I do not complete my degree in the United States. I have invested significant time, resources, and money into my current degree. I have already signed a lease in the United States for the coming school year. Because I am studying American politics, it is likely that I will not be able to transfer many of my course credits and I will have to essentially start a new college degree. I would likely have to apply to a university in Europe, but, since the application deadlines have already expired for this year, I would not be able to begin studying at a European university until 2018. I would essentially lose three years of studying— the two years that I spent in the United States and the year that I would have to wait before I could begin my studies in Europe. Being forced to abandon my studies after two years will also
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 163 of 219 negatively impact my job prospects. I will likely be a less desirable job applicant and it will negatively reflect on my grades.
13. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that my involvement will impact any future visa applications by me or my family, or that I will encounter problems when attempting to re-enter the United States after traveling abroad.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 164 of 219 I, Jane Doe #12, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this __10___ day of March, 2017, in Davis, CA.
______/s/ Jane Doe #12_______ Jane Doe #12
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 165 of 219
EXHIBIT 14

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 166 of 219

THE UNITED STATES DISTRICT COURT

Pars Equality Center,

FOR THE DISTRICT OF COLUMBIA )

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF JANE DOE #13 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #13, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen and lawful permanent resident of the United States. My parents and sister are also Iranian citizens and live in Iran.
3. I am a Muslim. My parents and sister are also Muslim.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 167 of 219
4. I grew up in Iran and completed my undergraduate education there. I was a political activist during the Green Movement in Iran.
5. I first arrived in the United States in 2010 on an F-1 student visa in order to enroll in a graduate degree program. While working toward my graduate degree, I learned that the government of Iran had tried and convicted me in absentia on the basis of my previous political actions. As a result, I am unable to ever return to Iran.
6. I received asylum in the United States in December 2011. In a few months, I will become eligible to seek U.S. citizenship.
7. My parents have visited me in the United States twice in the past seven years. My mother and father both visited me in 2011, and my mother visited me in 2014 as well.
8. Each time my parents intended to visit the United States, I provided them with, among other things, documentation of my legal status as an asylee as well as a letter of invitation. They submitted these documents along with their visa application. My parents successfully applied for and received tourist visas from the U.S. Consulate in Dubai in 2011 and my mom successfully applied for and received a tourist visa from the U.S. Consulate in Dubai in 2014.
9. The officials at the U.S. Consulate in Dubai did not ask my parents any questions about my religion or their religion in either 2011 or 2014.
10. After I became engaged to be married to a U.S. citizen, my parents planned to come to the United States for my wedding. I greatly looked forward to seeing them and began making plans for my wedding ceremony. I expected that they would be able to obtain tourist visas as they had done in the past.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 168 of 219
11. My parents applied for a tourist visa. This time, I provided them with far more supporting documentation than I had provided for their visa applications in either 2011 or 2014. My fiancé’s parents, who are U.S. citizens by birth and not of Iranian descent, provided my parents with letters of invitation, as did my fiancé. I provided them with a letter of invitation, documents showing my finances, and documents evidencing my legal status as an asylee and lawful permanent resident, among other things. My parents received an appointment date for their visa interview.
II. Harm Suffered Under January 27, 2017 Executive Order
12. I am aware that on January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) immediately restricting entry into the United States for citizens from certain countries, including Iran.
13. My parents received an email stating that their visa appointment had been cancelled. After a federal court preliminarily enjoined the January 27 Executive Order, my parents’ appointment was rescheduled.
14. After the federal court’s preliminary injunction of the January 27 Executive Order but before President Donald Trump signed a new Executive Order on March 6, 2017 (March 6 Executive Order), my parents traveled to Dubai for their appointment and interview.
15. In response to the questions of the consular officials, my parents said that they were traveling to visit me for my wedding, and that I was an asylee and lawful permanent resident of the United States.
16. My parents reported to me that the consular officials became visibly upset when they heard that I was an asylee. They then asked my parents if they intended to apply for asylum. My parents assured the consular officials that they did not intend to apply for asylum; that they
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 169 of 219
had successfully obtained tourist visas in the past; that they had returned to Iran each time after visiting me in 2011 and 2015; that they had every intention of returning to Iran after my wedding; that they were happy with their life in Iran; and that their other daughter, my sister, lived in Iran.
17. The consular officials stated that they did not understand how I had entered the United States and that I was not “in the system.”
18. The consular officials then asked, “what is your daughter’s religion?” 19. My parents were surprised because they had never before been asked a question about religion during a tourist visa interview. They replied that I was a Muslim. 20. At the conclusion of the interview, my parents’ application for a tourist visa was denied. The consular officials gave no basis for the denial. 21. My mother informed me that a couple who were in a substantially similar position— also applying for a tourist visa to a visit a relative and asylee in the United States — were approved for a tourist visa on the same day that my parents’ tourist visa was denied. The other couple was being interviewed next to my parents. Their interview, like that of my parents, was conducted in Farsi and my mother was able to overhear the couple’s responses to the interviewer’s questions. My mother gleaned from their conversation that there was one significant difference between their application and hers: the other couple were Armenian Christians, while my parents are Muslim.
III. Harm from March 6, 2017 Executive Order
22. I am aware that President Donald Trump signed an Executive Order on March 6, 2017 prohibiting the issuance of visas to Iranian citizens.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 170 of 219
23. If and when the March 6 Executive Order is enforced, my parents will be unable to re-apply for and receive a tourist visa. As a result of the March 6 Executive Order, I am very concerned that my parents will be unable to attend my wedding in the United States, or that they will never be able to visit me and my fiancé in the United States.
24. My fiancé and I have already been forced to postpone our wedding plans and contemplate significant changes to the ceremony. It is not possible for us to get married in Iran because it is not safe for me to return to Iran. We could plan to have a wedding ceremony in Europe or elsewhere, but that will require my fiancé’s American family to travel abroad. Or, if we proceed with a wedding in the United States, my parents will be unable to attend.
25. The thought that I will be unable to have my parents at my wedding, or that I will be unable to host them in my home in the future, is crushing. It has caused me great mental anguish.
26. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that my involvement will impact any future visa applications by my family or my imminent naturalization proceedings.
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 171 of 219 I, Jane Doe #13, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _13____ day of March, 2017, in __Washington DC______.
______/s/ Jane Doe #13_____ Jane Doe #13
6

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 172 of 219
EXHIBIT 15

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 173 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF JOHN DOE #1 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #1, 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 and am competent to testify thereto. I. Background: 2. I am an Iranian citizen. I first arrived in the United States on an F-1 student visa in 2015. My visa expires on June 7, 2017. My wife accompanied me on an F-2 visa for spouses of students. Her visa expires on July 30, 2017. 3. Both of our visas are multiple-entry visas. 4. I do not have any family in the United States. My entire family, as well as my wife’s family, lives in Iran.

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 174 of 219
5. In September 2015, I started a PhD program in Finance and Economics at Columbia University in New York, NY. While the program is formally five years long, most candidates typically take six years to complete their PhDs. I am currently in the second year of my PhD program.
6. My wife has a PhD in electrical engineering from the University of British Columbia in Vancouver, Canada. She has completed research on the newest generation of wireless communication systems and on energy harvesting and working toward more sustainable energy systems. She is a published author in the journal of the Institute of Electrical and Electronics Engineers (IEEE), the most prominent journal in the field of electrical engineering.
7. When we moved, my wife was planning to apply for a green card so that she could secure employment in her field in the United States. We paid $2,000.00 to retain an immigration attorney for the first phase of her green card application.
II. Harm Caused by the January 27, 2017 Executive Order: 8. On or about December 24, 2016, my wife and I flew to Iran to visit our families. 9. On or about January 22, 2017, I flew back to the United States. My wife was planning to join me later that week and had purchased a ticket for a January 28, 2017 Turkish Airlines flight from Esfahan, Iran to New York, NY. 10. On January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) preventing the entry of Iranian visa holders as well as others into the United States. 11. My wife attempted to board her flight on January 28, but was prevented from boarding by Turkish Airlines, citing the January 27 Executive Order. 12. On or about January 30, 2017, my wife attempted to board a flight from Tehran, Iran to the United States, but was again turned away by the airline and not permitted to board.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 175 of 219
13. My wife was unable to successfully board a flight and enter the United States until February 4, 2017.
III. Harm From March 6, 2017 Executive Order:
14. President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
15. The visas upon which my wife and I entered the United States expire this summer. If and when the March 6 Executive Order is enforced, we will be unable to renew our visas. Because we will be unable to renew our visas we will be unable to travel outside of the United States. As a result, my wife and I will be separated indefinitely from our families in Iran.
16. If I am forced to return to Iran for a family emergency or due to other circumstances while the March 6 Executive Order is enforced, and if any new visa application I submit is denied, I will be forced to drop out of my U.S. PhD program.
17. If I am forced to return to Iran permanently I will likely be unable to complete my PhD studies and it will be very difficult for me to find employment. I protested against the Iranian government during the Green Movement after the 2009 Iranian presidential election. I was detained for thirty days while I was an undergraduate student. As a result of my political activity, I was permanently enjoined from studying in Iran by the Iranian government.
18. In my opinion, it is very unlikely that the ban on entry will be lifted pursuant to its own terms as to individuals from Iran. The March 6 Executive Order requires the Secretary of Homeland Security to produce a list of countries that “do not provide adequate information” to adjudicate visas and other admissions. It is likely that Iran will be on that list, and very unlikely that Iran and the United States will reach agreement regarding the information that needs to be
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 176 of 219 provided. Thus, I believe that the prohibition on entry of Iranian nationals into the United States will become permanent.
19. I am joining this lawsuit as an anonymous plaintiff because various government agencies are named as Defendants, and I am scared of retaliation and consequences against me and my wife if I reveal my identity.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 177 of 219 I, John Doe #1, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _10_ day of March, 2017, in _New York, NY__.
_____/s/ John Doe #1______ John Doe #1
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 178 of 219
EXHIBIT 16A

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 179 of 219

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 180 of 219

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 181 of 219

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 182 of 219

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 183 of 219

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 184 of 219
EXHIBIT 16B

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 185 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-cv-255

SUPPLEMENTAL DECLARATION OF JOHN DOE #3 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #1, 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 and am competent to testify thereto.
2. My wife and I currently reside in Tehran, Iran. 3. This declaration supplements the declaration executed on February 7 and already filed with this Court to update the record of ongoing harm and impact resulting from the January 27, 2017, Executive Order, “Protecting the Nation from Foreign Terrorist Entry Into the United States” (the “Executive Order”). 4. Prior to the Executive Order, I was awarded a fellowship to conduct research at a top hospital in Boston, Massachusetts, and planned to start my fellowship in February 2017. 5. I petitioned for a J-1 visa for myself, and a J-2 visa for my wife at the same time.

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 186 of 219
We both had our visa interviews on October 12, 2016 at the U.S. Consulate in Dubai. Some time after the interview, my visa was approved. My wife’s visa petition was placed in administrative processing.
6. Due to the intervention of the Executive Order, the U.S. Consulate in Dubai refused to issue my visa. My wife’s visa petition remained in administrative processing after the Executive Order was signed.
7. I called the U.S. Consulate in Dubai to ask about the status of my J-1 visa and my wife’s J-2 visa, but the Consulate did not provide me with any answers.
8. As a result of the Executive Order, I was forced to push back the start date of my fellowship to March 2017.
9. Not until the weekend of February 25-26, 2017, did I receive an email from the U.S. Embassy in Dubai instructing me to drop off my passport for the issuance of my J-1 visa. I have made arrangements to ensure that the visa is stamped into my passport.
10. However, my wife’s visa petition remains in administrative processing. Even if my visa is issued, but my wife’s visa is not approved and issued, I will have to face the decision of being separated from my wife, or withdrawing from my fellowship.
11. Even if my visa and my wife’s visas are issued, and we are able to travel to the United States for my fellowship, I fear that we will be unable to travel outside of the United States due to our status as J-1 and J-2 visa holders. If we are unable to travel, we will be unable to see our families in Iran.
12. I am also concerned that, as a result of the Executive Order, I will be unable to renew my work authorization in the United States in the future. I also fear that my wife and I will be unable to petition for legal permanent residency in the United States in the future.

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 187 of 219
I, John Doe #3, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed this _25_ day of February, 2017, in _Tehran, Iran__.
_____/s/ John Doe #3________ John Doe #3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 188 of 219
EXHIBIT 17

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 189 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

DECLARATION OF JOHN DOE #5, ON BEHALF OF HIMSELF AND HIS MINOR CHILD BABY DOE #1, IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #5, on behalf of himself and his minor child Baby Doe #1, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 2. My son is Baby Doe #1. He is a minor approximately 7 months old.
I. Background:
3. I am an Iranian citizen. I entered to United States in September 2009 on an F-1 student visa. I have been studying and working in the United States since then. I received a Masters Degree in mechanical engineering in 2012 from the University of Buffalo in New York,
1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 190 of 219
and in 2015 I received my PhD in mechanical engineering from the University of Buffalo. I am currently working as a post-doctoral fellow with the SUNY Research Foundation. After entering the United States on an F-1 visa in 2009, I returned to Iran two times. Once in 2012 because I had a family emergency, and again in 2013 to be married to my wife. Both times I applied for and received a valid F-1 visa to return to the United States. I was interviewed and had to pass a lengthy security clearance all three times I applied for an F-1 student visa.
4. The F-1 visa on which I entered the United States most recently was a singleentry F-1 visa. It has expired.
5. I live with my wife and our infant son, Baby Doe #1, in New York. After we were married in 2013, my wife traveled with me to the U.S. with a valid F-2 visa, which is available for dependents of F-1 visas.
6. My son was born in the United States in August 2016. He has both a United States and Iranian passport.
7. On January 4, 2017, my wife and son traveled to Iran to introduce my son to our family in Iran. Most of my family is in Iran and my parents and in-laws in particular were very excited to meet my son, as he is currently their only grandchild. My wife and son were planning to stay in Iran for several months so that everyone in our families could meet my son. I purchased a plane ticket for my wife and son to fly back to the United States on or about April 4, 2017.
8. Before my wife left for Iran, we scheduled an appointment at the U.S. consulate in Dubai on January 17, 2017 for my wife to apply for a new F-2 visa. My wife had to travel from Tehran to Dubai for the interview and was unable to take our son on her journey to Dubai. My wife was interviewed at the U.S. consulate and provided all the necessary documentation.
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 191 of 219
The U.S. consulate approved her F-2 visa request that same day, January 17, 2017. My wife left Dubai immediately after her interview because she needed to return to our son in Iran.
II. Harm Suffered Post January 27, 2017 Executive Order:
9. After an F-2 visa is approved by the U.S. consulate, it takes several days to process the paperwork and issue the F-2 visa. On January 26, 2017, at approximately 2:00 a.m., I received an email from the U.S. consulate stating that my wife’s F-2 visa was ready to be issued and asking my wife to bring her passport to the U.S. consulate. Shortly afterwards, my wife made arrangements for an agency in Iran to take her passport to the U.S. consulate and issue her F-2 visa. Agencies like this are very common in Iran and are often used by individuals like my wife, who are unable to stay in Dubai while consulate takes several days to issue the visa after it is approved. These agencies typically take about 4 to 5 days to travel to Dubai, receive the visa, and return the passport.
10. On January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) preventing the entry of Iranian visa holders and others into the United States.
11. Because of the January 27 Executive Order, the U.S. consulate refused to issue the F-2 visa to my wife, even though the visa had already been approved. The agency that my wife hired to take her passport to Dubai returned her passport without the visa. My wife and I were extremely anxious about her and my son’s return to the United States.
12. My wife and I continued to try and contact the U.S. consulate to find out how it refused to issue her visa and how my wife could obtain her visa. My son is too young to travel on his own so in order to return to the United States he had to return with my wife. After a federal district judge in Washington temporarily restrained enforcement of the January 27
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 192 of 219
Executive Order, my wife contacted the U.S. consulate on February 4, 2017, seeking clarification about the status of her F-2 visa.
13. After much effort on our part, my wife’s visa was issued. The U.S. Consulate in Dubai issued her a single-entry F-2 visa which was set to expire immediately upon her entry into the United States.
14. My wife and my son were able to travel to the United States on February 19, 2017. We had to pay an additional $400 to change the date of her plane ticket. III. Harm From March 6, 2017 Executive Order:
15. President Donald Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
16. The terms of the March 6 Executive Order prohibit the issuance of visas to Iranian citizens like me and my wife. If and when the Executive Order goes into effect, my wife and I will be unable to travel outside of the United States because we will be unable to receive new visas to reenter the United States. As a result, my wife, son and I will face indefinite separation from our families in Iran.
17. I will also risk losing my job if I travel outside the United States and am barred from reentry due to my inability to receive a new visa.
18. I fear that U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned about any future visa applications that my wife and I wish to submit, or any treatment that we may face at the border to the United States when we do travel.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 193 of 219 I, John Doe #5, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this _13_ day of March, 2017, in _Amherst, NY_.
_______/s/ John Doe #5________ John Doe #5, on behalf of himself and his minor child, Baby Doe # 1
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 194 of 219
EXHIBIT 18A

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 195 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, National Iranian American Council, Public Affairs Alliance Of Iranian Americans, Inc. et al.,

Plaintiffs,

v.

Civil Action No.

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JOHN DOE #7 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #7, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.

I. Background:

2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to

the United States as a refugee.

3

I have been in a loving committed relationship with my partner, John Doe # 8, for

many years. My partner and I were both born and raised in Iran. Both of us also grew up in

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 196 of 219
Muslim households. The Muslim community in Iran has not been accepting of our sexual orientation.
4. My partner and I lived together in Iran for eight years. Because of this, we experienced harassment from the Iranian people. Most or all of this harassment stemmed from religious intolerance for same-sex couples in Iran. Our neighbors were suspicious of us because we were two men living together. On several occasions our neighbors reported us to the Iranian police. We lived in constant fear that we would be taken by government officials, who tolerate and even encourage violence against same-sex couples in Iran. I have heard of homosexual men being-arrested-and-beaterirrrantarrprisoris-:—Wtm topped-arTswerinwthu-driorbermseuTT very afraid of the police coming to arrest us. The harassment also made us feel unwanted in Iran. We were forced to move at least three different times because either landlord or the neighbors complained. The harassment was so strong that we constantly feared for our safety and, were forced to flee Iran.
5. My partner and I have been living in exile in Turkey for approximately 27 months. Our life in Turkey has been very difficult. We live in a small town where many people do not accept our relationship and we live in fear of violence against us. In this atmosphere, we are constantly afraid for our safety. Both my partner and I worked full time when we lived in Iran. We are not allowed to work in Turkey.
6. My partner is very ill. He was diagnosed with colitis and he experiences a lot of physical pain. Our sub-standard living conditions worsen his health conditions. We need to go to a country where he can recover and we can get adequate medical care.
•7. My partner and I are in a terrible situation. Because of our sexual orientation, we were unsafe in Iran and are unsafe in Turkey. We have applied for refugee status and would like
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 197 of 219
to be resettled to the United States where we will be safe from persecution and where my partner can receive treatment for his medical condition. We reached out to the Office of the UN High Commissioner for Refugees (UNHCR) after we arrived in Turkey and told them we wished to be referred to the U.S. Refugee Admissions Program. After a lengthy interview and vetting process, UNHCR agreed to our application for refugee status, gave us documentation of that approval, and referred us to the U.S. Refugee Admissions Program. We are now waiting for the decision of the United States on acceptance to the program. We know that the United States Refugee Admissions Program has admitted to the program many same-sex applicants and are waiting to be processed. It has been approximately 120 days since we received the certificates from the UN and referral to the US admissions program. II. Harm Suffered Post January 27, 2017 Executive Order:
8. I am aware that, on January 27, 2017, President Trump signed an Executive Order (EO) that impacts the refugee admissions process for citizens from certain countries, including Iran.
9. My partner and I check the website icmc.net, a website referred to us by the United Nations, nearly every day to keep track of our status in the U.S. refugee admissions process. After the EO was signed, the website posted a notice informing us that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the United States due to the EO.
10. The EO has caused us great distress. My partner and I are very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions Program.
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 198 of 219
11. Since the EO was issued my partner's health has severely worsened. He is not able to obtain the medical care needed where we live now. I also fear that his heath will continue to decline because we are experiencing so much anxiety and uncertainty surrounding the EO and its impact on our refugee applications.
12. My partner and I fear that U.S. government will retaliate against us because of our involvement in this lawsuit. We are concerned that our involvement will impact our acceptance in the Refugee Admission Program and harm our chances to be approved by the United States. We also fear persecution from the Iranian government if it were to become aware of our application for refugee status in the United States, or our involvement in this lawsuit.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 199 of 219
I, John Doe #7, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 8th day of February, 2017, in Denizli, Turkey.
/s/ John Doe #7 John Doe #7
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 200 of 219
EXHIBIT 18B

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 201 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

SUPPLEMENTAL DECLARATION OF JOHN DOE #7 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #7, hereby declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
2. This declaration supplements the declaration I, John Doe #7, previously submitted in support of Plaintiffs’ Motion for Preliminary Injunction filed with the Court on February 8, 2017.
3. The Executive Order signed by President Trump on January 27, 2017, continues to cause my partner, John Doe #8, and I great distress. Since submitting our prior declarations, we still have not received any notifications from the U.S. government or its affiliates regarding the status of our applications to be admitted to the U.S. Refugees Admissions Program. We
1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 202 of 219
continue to be very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions Program. My partner’s health continues to worsen because of the ongoing stress, anxiety, and uncertainty surrounding the Executive Order and its impact on our refugee applications. He is still unable to obtain the medical care needed where we live now.
4. As of February 17, 2017, the International Catholic Migration Commission (ICMC) was responding to email inquiries about the status of refugee applications with the following message: “As stated in the Executive Order signed by the President, the United States government has suspended all refugee admissions for 120 days effective January 27, 2017. The Resettlement Support Center (RSC) Turkey and Middle East (TuME) will continue to maintain all case information and biodata on file for all refugees who have been referred for resettlement to the United States. You may write to info.rsc@icmc.net ; call Istanbul office at +90 212 219 2055 or call Beirut office at +961 1 612245/ +961 1 612246 (Monday-Friday between 13:0015:00) with questions or if you wish to provide information on emergency situations or update your contact information. Please note the RSC will not be able to provide further information regarding the 120-day suspension at this time.”
5. My partner and I continue to check the International Catholic Migration Commission (ICMC) website every day. On or about February 23, 2017, the ICMC website had been updated to state, “Case status information is currently unavailable. Please contact RSC TuME at info.rsc@icmc.net; call Istanbul office at +90 212 219 2055 or call Beirut office at +961 1 612245/ +961 1 612246 (Monday-Friday between 13:00-15:00) with questions or if you wish to provide information on emergency situations or update your contact information.”
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 203 of 219
I, John Doe #7, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed this _28_ day of February, 2017, in __Denizli, Turkey___.
_____/s/ John Doe #7_____ John Doe #7

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 204 of 219
EXHIBIT 19A

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 205 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, National Iranian American Council, Public Affairs Alliance Of Iranian Americans, Inc. et al.,

Plaintiffs,

v.

Civil Action No.

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JOHN DOE #8 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #8, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen currently living in Turkey and seeking to be admitted to the United States as a refugee.
3. I have been in a loving committed relationship with my partner, John Doe # 7, for many years. My partner and I were both born and raised in Iran. Both of us also grew up in

l

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 206 of 219
Muslim households. The Muslim community in Iran has not been accepting of our sexual orientation.
4. My partner and I lived together in Iran for eight years. Because of this, we experienced harassment from the Iranian people. Most or all of this harassment stemmed from religious intolerance for same-sex couples in Iran. Our neighbors were suspicious of us because we were two men living together. On several occasions our neighbors reported us to the Iranian police. We lived in constant fear that we would be taken by government officials, who tolerate and even encourage violence against same-sex couples in Iran. I have heard of homosexual men being arrested and beaten in• Iranian prisons. We stopped answering the door because we were very afraid of the police coming to arrest us. The harassment also made us feel unwanted in Iran. We were forced to move at least three different times because either landlord or the neighbors complained. The harassment was so strong that we constantly feared for our safety and were forced to flee Iran.
5. My partner and I have been living in exile in Turkey for approximately 27 months. Our life in Turkey has been very difficult. We live in a small town where many people do not accept our relationship and we live in fear of violence against us. In this atmosphere, we are constantly afraid for our safety. It has been very difficult for us to find employment.
6. I am very ill. I was diagnosed with colitis and experience a lot of physical pain. Our' sub-standard living conditions worsen my health conditions. We need to go to a country where I can recover and get adequate medical care.
7. My partner and I are in a terrible situation. Because of our sexual orientation, we were unsafe in Iran and are unsafe in Turkey. We have applied for refugee status and would like to be resettled to the United States where we will be safe from persecution and where I can

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 207 of 219
receive treatment for my medical condition. We reached out to the Office of the UN High Commissioner for Refugees (UNHCR) after we arrived in Turkey and told them we wished to be referred to the U.S. Refugee Admissions Program. After a lengthy interview and vetting process, UNHCR agreed to our application for refugee status, gave us documentation of that approval, and referred us to the U.S. Refugee Admissions Program. We are now waiting for the decision of the United States on acceptance to the program. We know that the United States Refugee Admissions Program has admitted to the program many same-sex applicants and are waiting to be processed. It has been approximately 120 days since we received the certificates from the UN and referral to the US admissions program. II. Harm Suffered Post January 27, 2017 Executive Order:
8. I am aware that, on January 27, 2017, President Trump signed an Executive Order (EO) that impacts the refugee admissions process for citizens from certain countries, including Iran.
9. My partner and I check the website icmc.net nearly every day to keep track of our status in the U.S. refugee admissions process. After the EO was signed, the website pcisted a notice informing us that refugees and refugee applicants from Iran pending admission to the U.S. program could not travel to the United States due to the EO.
10. The EO has caused us great distress. My partner and I are very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions Program.
11. Since the EO was issued my health has severely worsened. I am unable to obtain the medical care needed where we live now. The anxiety and uncertainty surrounding the EO
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 208 of 219
and its impact on our refugee applications has also caused my health to worsen because of the additional stress.
12. My partner and I fear that U.S. government will retaliate against us because of our involvement in this lawsuit. We are concerned that our involvement will impact our acceptance in the Refugee Admission Program and harm our chances to be approved by the United States. We also fear persecution from the Iranian government if it were to become aware of our application for refugee status in the United States, or our involvement in this lawsuit.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 209 of 219
I, John Doe #8, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 8th day of February, 2017, in Denizli, Turkey.
/s/ John Doe #8 John Doe #8
5

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 210 of 219
EXHIBIT 19B

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 211 of 219

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

Civil Action No. 17-255

SUPPLEMENTAL DECLARATION OF JOHN DOE #8 IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #8, hereby declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
2. This declaration supplements the declaration I, John Doe #8, previously submitted in support of Plaintiffs’ Motion for Preliminary Injunction filed with the Court on February 8, 2017.
3. The Executive Order signed by President Trump on January 27, 2017, continues to cause my partner, John Doe #7, and I great distress. Since submitting our prior declarations, we still have not received any notifications from the U.S. government or its affiliates regarding the status of our applications to be admitted to the U.S. Refugees Admissions Program. We
1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 212 of 219
continue to be very concerned about whether we will ever be approved by the United States to participate in the Refugee Admissions Program. My health continues to worsen because of the ongoing stress, anxiety, and uncertainty surrounding the Executive Order and its impact on our refugee applications. I am still unable to obtain the medical care needed where we live now.
4. As of February 17, 2017, the International Catholic Migration Commission (ICMC) was responding to email inquiries about the status of refugee applications with the following message: “As stated in the Executive Order signed by the President, the United States government has suspended all refugee admissions for 120 days effective January 27, 2017. The Resettlement Support Center (RSC) Turkey and Middle East (TuME) will continue to maintain all case information and biodata on file for all refugees who have been referred for resettlement to the United States. You may write to info.rsc@icmc.net ; call Istanbul office at +90 212 219 2055 or call Beirut office at +961 1 612245/ +961 1 612246 (Monday-Friday between 13:0015:00) with questions or if you wish to provide information on emergency situations or update your contact information. Please note the RSC will not be able to provide further information regarding the 120-day suspension at this time.”
5. My partner and I continue to check the International Catholic Migration Commission (ICMC) website every day. On or about February 23, 2017, the ICMC website had been updated to state, “Case status information is currently unavailable. Please contact RSC TuME at info.rsc@icmc.net; call Istanbul office at +90 212 219 2055 or call Beirut office at +961 1 612245/ +961 1 612246 (Monday-Friday between 13:00-15:00) with questions or if you wish to provide information on emergency situations or update your contact information.”
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 213 of 219
I, John Doe #8, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed this _28_ day of February, 2017, in __Denizli, Turkey___.
_____/s/ John Doe #8_____ John Doe #8

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 214 of 219
EXHIBIT 20

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 215 of 219

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

National Iranian American Council,

)

Public Affairs Alliance of Iranian Americans, )

Inc. et al,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 17-255

)

Donald J. Trump, President of the United States, )

et al.

)

)

)

Defendants.

)

DECLARATION OF RICHARD M. PETTIGREW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUCNTION
Pursuant to Title 28 U.S.C. Section 1746, I, Richard M. Pettigrew, PhD, RPA, declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth here or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained here.
2. I am an established consulting archaeologist in Eugene, Oregon, with 43 years of experience in western North America. I have a Ph.D. in Anthropology from the University of Oregon and am a Registered Professional Archeologist. I have written, taught and conducted research on hundreds of projects in the Pacific Northwest in both the academic and private sectors and I have published numerous technical works. In 2006, I received the Society for

1

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 216 of 219
American Archaeology Award for Excellence in Public Education, in recognition of my worldwide leadership in public education about archaeology and cultural heritage.
3. I am the founder and Executive Director and President of Archaeological Legacy Institute, a 501(c)(3) nonprofit corporation in Eugene, Oregon. My duties include managing the annual The Archaeology Channel International Film Festival in Eugene, now in its 14th year. I am also an experienced producer of cultural heritage films and I have served on film festival juries in France, Germany, Iran, and Italy.
4. The Festival, scheduled for May 3-6, 2017, features 4 days of screenings of juried films and videos on archeological and indigenous topics, followed by an awards reception.
5. In recent years, we have added a three-day conference (The Archaeology Channel Conference on Cultural Heritage Media), for presentations, discussions, and exhibits on cultural heritage media covering the same time period. This conference is an unparalleled worldwide networking opportunity for cultural heritage film makers, including writers, directors, producers, broadcasters, and distributors, to engage with each other and with those interested in the making and uses of cultural heritage media – including archaeologists, educators, artists, journalists, and indigenous organizations.
6. Through the Festival and the Conference, Archaeological Legacy Institute seeks to promote, study and preserve cultural heritage.
7. This year, our Festival and Conference are suffering significant harmful impacts from President Trump’s executive orders which have the purpose and effect of barring individuals traveling to the United States from majority-Muslim countries, including Iran, for no other reason than their identity as nationals of majority-Muslim countries. These include the January 27, 2017, Executive Order, “Protecting the Nation from Foreign Terrorist Entry Into the
2

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 217 of 219
United States” (“January 27 Executive Order”) and the subsequent March 6, 2017, Executive Order of the same name (“March 6 Executive Order”) expected to go into effect on March 16.
8. In 2017, there are six Iranian citizens and one citizen of Libya who are planning to attend whose participation is currently foreclosed due to these executive orders. All but one (the Libyan) have applied for visas and completed their interviews, but have yet to receive their visas. They have been told their applications are undergoing “administrative processing” – a further step that the state department sometimes requires, and which can take up to 60 days to complete. The current restrictions imposed by the January 27 Executive Order have been lifted by the courts and their applications have been proceeding up until now. But on March 16, when the March 6 Executive Order goes into effect, new restrictions will apply that may make it impossible for them to come. Because the Conference is less than 8 weeks away, there is very little time to determine whether they are eligible for a waiver and to complete that process – which will impose an unknown period of delay and has no guarantee of success. The March 6th Executive Order places unusual burdens and uncertainties on them by requiring this separate and extra process due to their national origin.
9. From my perspective, the prospects for their participation are dismal. 10. This will have negative impacts on our event, our partners, and the local Eugene economy. Two of our Iranian guests are financially sponsored by a State Department cultural exchange program, and we also been awarded a grant from a consortium of universities to support their participation, in order to facilitate cultural exchange. Those grants will be wasted if the individuals cannot obtain visas. 11. One participant who is a film producer and investor from Shiraz has committed to providing a $1000 sponsorship, which will be lost to us if that person is unable to obtain a visa
3

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 218 of 219 and travel to the United States. We also will face the loss of these participants’ registration fees, and Eugene will lose economic opportunities if they cannot reserve hotel rooms and cannot attend and spend money locally.
12. Beyond the financial losses, we will lose their intangible academic and professional contributions to our Conference, including lost opportunities to develop and support our worldwide network and experience important cultural exchange. Our program’s mission has been stymied by these executive orders.
13. I am also fearful that Iran may decide to block travel by Americans in retaliation. We are planning a tour of Iran for Americans in October and I am concerned about whether that trip will be able to go forward.
4

Case 1:17-cv-00255-TSC Document 35-2 Filed 03/15/17 Page 219 of 219
r''
I, Richard M. Pettigrew, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 1O nday of Marc h,20l7,in Eugene, OR.
Richard M. P6ttigrew,

Case 1:17-cv-00255-TSC Document 35-3 Filed 03/15/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER et al., Plaintiffs, v.
DONALD J. TRUMP et al., Defendants.

Civil Action No. 1:17-cv-255 Hon. Tanya S. Chutkan

PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
The Court, having considered Plaintiffs’ Motion for Preliminary Injunction (“Motion”) and any opposition thereto, and finding that good cause appears, orders as follows:
The Motion is hereby GRANTED. 1. Defendants are hereby preliminarily restrained and enjoined from:
(a) enforcing or taking any steps to effectuate §§ 2(c)-(e), 3, 6(a), and 6(c) of Executive Order No. 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“March 6 Executive Order”), including at any United States border or point of entry;
(b) applying §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to deny, revoke, delay, suspend, restrict, or cancel any immigrant or nonimmigrant visa or refugee status;
(c) applying §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to delay, suspend, or cease immigrant or nonimmigrant visa application or issuance processing;

Case 1:17-cv-00255-TSC Document 35-3 Filed 03/15/17 Page 2 of 3
(d) applying §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to delay, suspend, or cease refugee applicant processing;
(e) applying §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to delay, deny, or suspend entry or admission to any person;
(f) applying §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to prohibit any person from applying for or receiving any benefit under the Immigration and Nationality Act of 1965 if receipt is otherwise lawful, including an immigrant or nonimmigrant visa, lawful permanent resident, asylum, or refugee status, or other adjustment of status;
(g) denying any person subject to the March 6 Executive Order access to legal counsel of his or her choice;
(h) applying Sections §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order to instruct any airline or other common carrier to deny passage to any person; and
(i) imposing or threatening to impose any financial penalty on any airline or other common carrier for allowing passage to any person covered by §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order; 2. Defendants are further ordered to:
(a) within 10 days, submit written guidance for employees, contractors, and agents of U.S. Customs and Border Protection and any other U.S. government entity necessary to ensure full and timely compliance with all terms of this Order to the Court for its review and approval, and, when such approval is granted, immediately issue such guidance;

Case 1:17-cv-00255-TSC Document 35-3 Filed 03/15/17 Page 3 of 3

(b) immediately rescind any guidance, directive, memorandum or statement interpreting or applying the March 6 Executive Order that conflicts with any term of this Order;
(c) immediately upon its issuance, prominently post a copy of the written guidance required under paragraph 2(a) on government websites, including state.gov and uscis.gov;
(d) within 10 days, update all relevant public guidance, documentation, and FAQs to reflect the terms of this Order; and
(e) require Defendants to reissue within 10 days any and all visas physically cancelled visas as a result of Executive Order, No. 13,769, issued January 27, 2017, or the March 6 Executive Order (collectively, “the Executive Orders”), to issue any visas that were approved but not issued as a result of the Executive Orders, and to reschedule any consular appointments or interviews cancelled as a result of the Executive Orders.

IT IS SO ORDERED.

Dated: April __, 2017

____________________________ U.S. DISTRICT JUDGE

 
 Case 1:17-cv-00255-TSC Document 55 Filed 03/31/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

AMICI CURIAE BRIEF OF NATIONAL AND REGIONAL CIVIL RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00255-TSC Document 55 Filed 03/31/17 Page 2 of 33
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES
DANGEROUS CONDITIONS FOR MEMBERS OF MINORITY GROUPS. .................2 A. Stereotyping Minority Groups Creates A Climate For Discrimination. ..................2 B. The Executive Order Is Based On Stereotypes About Muslims And Arabs
As “Anti-American” And “Terrorists.” ...................................................................5 C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged
Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. ...........................................................8 II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST ..................................................................11 A. Animus Towards A Particular Group Is Not A Legitimate Government Interest....................................................................................................................11 B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest. ............................17 C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims ...................20 III. CONCLUSION..................................................................................................................25
- i AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 55 Filed 03/31/17 Page 3 of 33
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) ......................................................................................................3
Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2011) ...................................................................................................12
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)...........................................................17, 18, 19, 24
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...............................................................................................12
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)...................................................................................................................4
Buck v. Davis, 580 U.S. ____, 137 S. Ct. 759 (2017)....................................................................................4, 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................................... 12, passim
Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985) .............................................................................................13
Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) .....................................................................................................4
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...................................................................................................................2
Hassan v. City of New York, 804 F.3d (2d Cir. 2016)..............................................................................................................3
Hawai‘i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).....................................................................19, 20
Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ...........................................................................................................19
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................11
- ii AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 55 Filed 03/31/17 Page 4 of 33
Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...................................................................................................................2
Loving v. Virginia, 388 U.S. 1 (1967).......................................................................................................................4
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................9
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................20
Miller-El v. Dretke, 545 U.S. 231 (2005)...................................................................................................................3
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)...................................................................................................................3
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................13, 14, 17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................................................................2
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) .....................................................................................................3
Romer v. Evans, 517 U.S. 620 (1996)...............................................................................................13, 15, 16, 17
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)...................................................................................................................8
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................2
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) ........................................................................................................3
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...............................................................................................13, 16, 17, 25
United States v. Robel, 389 U.S. 258 (1967).................................................................................................................21
United States v. Stephens, 421 F.3d 503 (7th Cir. 2005) .....................................................................................................3
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United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................................12, 16, 17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...........................................................................................11, 20
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................................................12
FEDERAL REGULATIONS
82 Fed. Reg. 13,209 (Mar. 9, 2017).................................................................................................7
82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................................................6
OTHER AUTHORITIES
Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP .....................................................................10
Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons ...................................................................................................21, 22
C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). .................................................................................................................7
Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kelly-travel-ban-muslimcountries ...................................................................................................................................22
David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climate-racial-intolerance%E2%80%99-fueled-anti-muslimpolitical-rhetoric .......................................................................................................................10
Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travelban-will-have-same-basic-policy-outcome.html .....................................................................19
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Helena Horton, Muslim ban statement ‘removed’ from Donald Trump’s website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statementremoved-from-donald-trumps-website/. ....................................................................................5
Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/ ...............................................................................................................................5
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) ....................13
Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html ...................................................................................25
Louis Nelson, Trump on immigration order: Call it what you want — it’s about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trump-immigration-order-ban-no-ban234477........................................................................................................................................6
Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_b omb_plot.html ..........................................................................................................................24
Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kent-shooting-victim-sayshe-was-told-go-back-to-your-own-country/. ...........................................................................10
N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trumpforeign-policy.html?_r=0 ...........................................................................................................6
Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017)..............................................................................................................7
Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science (Nov. 26, 2004) ..........................................................................................................................................7
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)......................................................................................4
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/dhsmemo-contradict-travel-ban-trump/98374184/..................................................................22, 23
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Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004)........................................4
Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963) ......................................................................................................4
Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998) ...........................................2
TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddowshow/trms-exclusive-dhs-document-undermines-trump-case-travel-ban ................................23
Local Civil Rule 7(o) Statement Undersigned counsel confirm, pursuant to Local Civil Rule 7(o) and Rule 29(a)(4), Fed. R. App. P., that (i) no party’s counsel authored the brief in whole or in part; (ii) no party or party’s counsel’ contributed any money that was intended to fund preparing or submitting the brief; and (iii) no person, other than amici curiae, their members and their counsel, contributed money that was intended to fund preparing or submitting the brief.
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INTRODUCTION Amici, the American-Arab Anti-Discrimination Committee, the Center for Constitutional Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights, The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice, the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form. The amici respectfully submit this brief to advance two separate but related arguments. First, amici submit that the balance of equities and public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”), as it improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order targets a religious minority in a manner that demands that this Court apply strict scrutiny to the question of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, amici write separately to argue that, even if this court were to review the Executive Order under a “rational basis” test, the Order would still violate the Constitution’s equal protection guarantee. Regardless how the Government has sought to characterize or revise the Order after the fact, the evidence demonstrates that it is motivated by animus toward Muslims and those born in the targeted majority-Muslim countries, and not by any demonstrable national security concerns. This motivating animus is not a legitimate government end under any level of scrutiny. As such, the
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Executive Order is unconstitutional. I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES DANGEROUS
CONDITIONS FOR MEMBERS OF MINORITY GROUPS. A. Stereotyping Minority Groups Creates A Climate For Discrimination. The balance of equities and public interest in this case weighs in favor of enjoining the Executive Order due to the dangerous and discriminatory conditions it engenders. The courts have generally recognized that stereotyping of minority groups has a negative effect on individuals within those groups and creates a climate ripe for discrimination. Categorization, or social categorization, is the natural cognitive process by which people place individuals into particular social groups. Social categorization essentially has the effect of exaggerating between-group differences while minimizing within-group differences, thereby increasing perceived homogeneity within groups. Some categorization is “automatic,” but much categorization is built on social cues. “Stereotyping, prejudice, and discrimination clearly profit from context-driven processes such as categorization . . . .” Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998). In light of the extensive social science research on this subject, the Supreme Court has repeatedly stated that discriminatory stereotypes impact decision making. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (recognizing disparate impact liability in housing decisions to prevent segregated housing patterns that might otherwise result from the role of “covert and illicit stereotyping”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing the role that sex stereotyping played in employment discrimination case, explaining “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision), superseded by statute as
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stated in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability); accord Miller-El v. Dretke, 545 U.S. 231, 268 (2005) (“Subtle forms of bias are automatic, unconscious, and unintentional and escape notice, even the notice of those enacting the bias.”) (citations omitted). Further, the Court’s precedent outlines the negative effects that arise from stereotyping and social categorization. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (addressing Equal Protection claims relating to school integration efforts and recognizing harms traceable to “pernicious” racial classifications and school segregation).
The circuit courts also recognize that social categorization and stereotyping often create the conditions for discrimination in areas such as provision of housing, employment decisions, and police motivations. See Hassan v. City of New York, 804 F.3d, 306 (2d Cir. 2016) (rejecting “appeals to ‘common sense’” which “might be infected by stereotypes” as sufficient to justify police surveillance of Muslim individuals, business, and institutions) (quoting Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of “unlawful animus” in an employment discrimination case because “unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999)); United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury selection and the outcome of trials); Eastman Kodak Co., 183 F.3d 42 (holding Title VII’s ban on “disparate treatment because of race” includes “acts based on conscious racial
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animus and . . . employer decisions that are based on stereotyped thinking)); Gonzalez-Rivera v. INS, 22 F.3d 1441, 140 (9th Cir. 1994) (recognizing in police stop case that “officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so”).
Stereotyping of all kinds can be exacerbated through a psychological triggering phenomenon known as “priming.” Priming occurs when “subtle influences . . . . increase the ease with which certain information comes to mind.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness at 69 (2009). In the case of racial stereotyping, which shares many attributes with stereotyping of Muslims, priming an individual with race-based stereotypes can influence later decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004). Social science research repeatedly demonstrates that individuals have a persistent tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963). The connection between state sanctioned discrimination and private harm is clearest in the Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court recognized that discrimination with the sanction of law raises unique and particular dangers.
The Supreme Court very recently said that discriminatory harm can be heightened when it is officially legitimized. In Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), the Supreme Court held that the use of a defense expert in the sentencing phase of a capital trial to testify that African-Americans are more likely to commit violent crimes constituted ineffective assistance of counsel in violation of the Sixth Amendment. According to the Court, the effect of the racial stereotyping on the jury was “heightened due to the source of the testimony. [The expert] took
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the stand as a medical expert bearing the court’s imprimatur.” Id. at 777. B. The Executive Order Is Based On Stereotypes About Muslims And Arabs As “Anti-American” And “Terrorists.” As in the cases cited above, the Muslim ban bears the imprimatur of the Executive
Branch, engendering precisely the type of discriminatory harms that the Court has held cannot withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump issued a written statement calling for a “total and complete shutdown on Muslims entering the United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has been a major item on his policy agenda.1 At that time, his campaign explained that “there is great hatred towards Americans by large segments of the Muslim population.” He also characterized the need for a bar on Muslim and Arab entry into the United States as a way to stop our country from being the “victims of horrendous attacks by people that believe only in Jihad.”2 Before a single vote was cast, President Trump distinguished his campaign by expressly categorizing Muslims as “dangerous” and “terrorists.”
Mr. Trump’s categorization of Muslims has been ongoing. On January 4, 2016, the Trump campaign premiered its first television advertisement. That advertisement told viewers that Trump was “calling for a temporary shutdown of Muslims entering the United States” until doubts about “radical Islamic terrorism” can be “figure[d] out.”3 The link the President drew between “radical Islamic terrorism” and all individual Muslims entering the United States could not be more strongly established. Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that “the struggle against radical Islam also takes place in our 1 Helena Horton, Muslim ban statement 'removed' from Donald Trump's website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statement-removedfrom-donald-trumps-website/. 2 Id. 3 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
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homeland. . . . We must stop importing extremism through senseless immigration policies.”4 Again, through allusion to the individual Muslims entering the United States through legitimate means, Trump emphasized that he draws a connection between individual Muslims and the “struggle against radical Islam.”
Just one week after his Inauguration, President Trump acted to fulfill his campaign pledge and codify his campaign rhetoric. On January 27, 2017, he signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017). Among the immigration restrictions contained in Executive Order 13,769 was a temporary ban of all nationals from seven majority-Muslim countries from entering the United States: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. Section 1 of E.O. 13,769 explained that the Order is intended to ensure that the United States stays “vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
While many surrogates of the current Administration pushed back at the characterization of E.O. 13,769 as a “Muslim ban,” the President embraced it, which demonstrated his embrace of the social categorization of Muslims as “dangerous” and “terrorists.” He told the public via Twitter that “[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of country!”5 Throughout his campaign, and now in office, President Trump has voiced his view of Muslims as threats to national security.
After multiple courts enjoined enforcement of E.O. 13,769, the Trump Administration
4 N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html?_r=0. 5 Louis Nelson, Trump on immigration order: Call it what you want — it's about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trumpimmigration-order-ban-no-ban-234477.
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announced plans to make revisions to that order. On March 6, the Administration issued E.O. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). The revised Executive Order preserves several core provisions of the prior Order, including the suspension of the United States Refugee Admissions Program for 120 days, and the suspension of entry into the United States of nationals of six of the majority-Muslim countries designated in E.O. 13,769 for 90 days. See §§ 6(a); 2(c). Like E.O. 13769, the new Order targets only majority-Muslim countries.
This official action of marking a social group, Muslims, as a dangerous “fifth column,” only aggravates societal biases against Muslims and Arabs in this country. It creates conditions where violence against Muslims is seen as more acceptable because they are perceived stereotypically as “bad people.” A “sample of U.S. citizens on average viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially sincere, honest, friendly, or warm.” Susan T. Fiske, et al, Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science, 206, 1482-1483 (Nov. 26, 2004). More recent social science detailing the administration of “implicit association tests” demonstrates both the already-existing climate of prejudice against Muslims and Arabs and the unconscious nature of that bias: “Non-Arab and non-Muslim test takers manifested strong implicit bias against Muslims. These results are in sharp contrast to self-reported attitudes.” C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). In 2011, the Pew Research Center surveyed Western cultures to determine the characteristics they associate with people in the Muslim world. That survey found that about half of respondents characterized Muslims as “violent,” and more than half characterized Muslims as “fanatical.”6 The Executive Order exacerbates already
6 Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017).
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existing, but latent, stereotypes and prejudices against individual Muslims in the United States. C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. There can be no doubt that, given its origin and history, the Executive Order is based on
social categorization of Muslims as “anti-American,” “terrorists,” and those with “hatred for Americans.” In this case, President Trump’s repeated, unsubstantiated claims that Muslims are dangerous, and should be barred from entering the country, are just the “cue” needed to release other suppressed discrimination and violent beliefs held by those harboring ill will or unconscious bias against Muslims. The President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the immigration of Muslims and Arabs into the country, places an official “imprimatur” on those stereotypes, magnifying their effect.
When someone in a position of authority, as President Trump, categorizes Muslims as dangerous and terrorists, he creates the message that Muslims are “outsiders” and not full members of the political community. In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000), the Court found unconstitutional a school sponsored religious message, delivered over the school’s public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to a school policy. The Court’s reasoning was based on its view that the school policy created two classes of people—those who adhered to the favored religion, and those who did not. Id.
The President’s strong and consistent support of what he calls a “Muslim ban” similarly sends the message that those who adhere to Islam as their religion are not part of American society, as opposed to Christians and non-Muslims, who are favored by the ban. In doing so, he “send[s] a message to non-adherents [to the Christian faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are
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insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring). The Executive Order and the President’s statements characterize Muslims as homogenous and a national threat. The President’s demonization of Muslims engenders a climate conductive to violence against people seen as Muslims.
In the short aftermath of the Executive Order and its predecessor, E.O. 13,769, and their chaotic implementation, anti-Muslim hate crimes have flourished. The February 22, 2017 shootings of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as enemies of the American people. Kuchibhotla and Madasani, two engineers at a local technology company, and both Indian immigrants to the United States, had gathered with co-workers at a bar near their office to watch a local college basketball game. Also at that bar was Adam Purinton, a 51-year-old U.S. Army veteran who mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities categorized by the Executive Order and its predecessor as barred from entry into the United States). Purinton approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!” Kuchibhotla was killed, and Madasani was wounded, in the incident. Ian Grillot, a patrolman present at the scene, was wounded while attempting to intervene. Purinton fled across the state border into Missouri, telling a bartender in a second bar that he needed to hide out because he had just shot two Iranians. Putting aside Purinton’s stereotyped view that his victims were Iranians simply because they appeared to be foreign-born immigrants, his actions demonstrate the danger that social categorization can cause by exaggerating both the distance between in-groups (“real Americans”) and out-groups (“Iranians”), as well the homogeneity of the out-group. As the Southern Poverty Law Center described the Olathe violence, “shocking hate crimes” “emerge not from a vacuum, but always from an environment that encourages and
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fosters [that] kind of violence.”7
In addition, a rash of arsons and vandalism at mosques has plagued the United States
surrounding the issuance of E.O. 13,769. On January 27, 2017, the very date of the first order, a
fire destroyed the Islamic Center of Victoria, Texas. On February 24, 2017, a blaze broke out in
the entrance of the Daarus Salaam Mosque near Tampa, Florida. Combined with two arsons of
mosques shortly before President Trump’s inauguration, the United States has seen a surge of
hate crimes against the Muslim community that is unprecedented. A spokesperson at the
Southern Poverty Law Center told reporters that “four mosques being burned within seven weeks of each other” was “part of a whole series of dramatic attacks on Muslims.”8
Other recent attacks on mosques in the United States include a rock thrown through a
window of the Masjid Abu Bakr mosque in Denver, Colorado and vandals destroying the
entrance sign at the Muslim Association of Puget Sound in Redmond, Washington. On March 5,
2017, a Sikh man was shot in his Kent, Washington driveway when a man approached him and said “go back to your own country.”9
Rather than incitement of crime and hatred, the public interest in this county is best
served by tolerance of different religions as the Constitution requires, and tolerance of both
foreign-born and American-born adherents of different religions. The insidious effect of the
Muslim and Arab ban does not impact merely those persons seeking to enter the United States
7 David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99-%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 8 Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017-begins?utm_term=.rhx3bJRw6#.wcxEQDMKP. 9 Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kentshooting-victim-says-he-was-told-go-back-to-your-own-country/.
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from the six designated countries. By promoting malevolent social stereotypes and fueling violence against a minority, the Executive Order fundamentally threatens the American ideal of a diverse society made up of different of ethnic groups, races, and religions. II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT INTEREST Plaintiffs’ Motion for a Preliminary Injunction sets forth in detail why the Executive Order discriminates on the basis of national origin and religion and thus is subject to strict scrutiny review. See ECF No. 35. Amici agree with Plaintiffs that the Executive Order is properly subject to, and fails, strict scrutiny. Amici write separately to argue that, even if the Executive Order were reviewed under a more deferential standard for which Defendants presumably will advocate,10 the Order would still violate the Equal Protection Clause because it is motivated by an animus toward Muslims and those born in the targeted majority-Muslim countries, and has no rational relationship to any legitimate governmental purpose. A. Animus Towards A Particular Group Is Not A Legitimate Government
Interest. Strict scrutiny under the equal protection clause applies where the Government singles out a suspect class or interferes with the exercise of a fundamental right. Where strict scrutiny applies, the challenged law is presumed to be invalid, and will survive judicial review only if the Government can show that it is “narrowly tailored” to further “compelling governmental interests.” See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (citation and internal quotation marks omitted). In contrast, the rational basis standard treats governmental conduct as
10 In the related Washington v. Trump proceeding, Defendants argued that the Executive Order was actually not subject to any standard of review and was, in fact, unreviewable because it related to immigration and national security. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The Ninth Circuit rejected this argument noting that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Id. at 1162.
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presumptively valid, placing the burden on the challenger to prove that such conduct is not “rationally related to a legitimate state interest.” See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, the level of scrutiny is often a key factor in determining the outcome of an equal protection challenge to government action.
Government action fails even the more forgiving rational basis test, however, where it evinces animus directed against an unpopular group. As discussed below, where the history of a law reflects that it was motivated by animus against a particular class of people, the Court must give “careful consideration” to the government’s stated justification for the law. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). In such circumstances, courts will apply a more searching review to the stated justifications for the policy in order to determine whether the policy is, in fact, motivated by impermissible animus. In his concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Judge Holmes explored in depth the current state of what he called “animus” jurisprudence. Id. at 1097-103 (Holmes, J., concurring). He concluded that:
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. Id. at 1103; see Windsor v. United States, 699 F.3d 169, 180–81 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute”) (citation and internal quotation marks omitted); Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 691–93 (6th Cir. 2011) (noting that where Supreme Court found “that the legislation at issue was in fact intended to further an improper government objective,” it applied “rational basis with a bite”)
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(internal quotation marks omitted); Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983, 990–91 (D. Kan. 1985) (“In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required.”).11
Because animus is not a legitimate government interest, a long line of Supreme Court precedent holds that laws motivated by animus are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment (if enacted by state or local governments) and/or the Due Process Clause of the Fifth Amendment (if enacted by the federal government).
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court considered a Fourteenth Amendment challenge to a Texas statute that both denied state funding for the education of children not “legally admitted” into the United States and authorized school districts to deny enrollment to such children. The Court recognized that undocumented aliens did not constitute a suspect class, and that public schooling was not a Constitutional right.12 Nonetheless, in recognition of the seminal role that education occupies in the nation’s political and cultural heritage, and in the development of productive contributors to American society, the Court held that denying education to the entire class of undocumented alien children would be rational only if it furthered some substantial state goal. The Court then carefully reviewed the State’s purported bases for the legislation, which included deterring unlawful immigration, avoiding “special burdens” on the State’s educational system allegedly created by undocumented alien
11 See also Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne, Moreno, and Romer “depart[s] from the usual deference associated with rational basis review” and “commentators have correctly discerned a new rational basis with bite standard in such cases”). 12 The Supreme Court has recognized four suspect classes: race, religion, nationality, and alienage. The Court has also recognized two quasi-suspect classes—gender and illegitimacy—to which it applies a level of review known as intermediate scrutiny. See, e.g., Cleburne, 473 U.S. at 440-41.
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students, and refusing public education to a class of children deemed less likely to remain in the State and therefore make productive use of that education. Finding that the legislation would not meaningfully further any of these goals, and that a desire to punish children was not a legitimate government interest, the Court struck down as irrational a law that promoted “the creation and perpetuation of a subclass of illiterates within our boundaries.” Id. at 220, 230.
In Cleburne, the Court struck down a zoning ordinance that required special use permits for homes for individuals with Down syndrome, while not requiring such permits for various other residential facilities, including apartment houses, multi-family dwellings, boarding houses, and fraternity and sorority houses. The Court declined to treat those with an intellectual disability as a suspect or quasi-suspect class, and so applied rational basis review. However, the Court conducted a searching review of the stated reasons for the ordinance, and concluded that none of them provided any legitimate basis for differential treatment of the affected group.
One of the City’s purported justifications for the permit requirement was concern about “negative attitudes” of neighbors living close to a facility for the mentally disabled, and “fears” of elderly residents in the community. In finding that this stated justification lacked a rational basis, the Court noted that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for people with mental disabilities differently from apartment houses, multiple dwellings, and the like.” Id. at 448. Of particular relevance here, the Court stated that the Government “may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. Finding no evidence that the ordinance was rationally related to the objectives urged by the City, the Court concluded that “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Id. at 450.
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In Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated an amendment to the Colorado state constitution that nullified state laws prohibiting discrimination against same-sex couples. Because the Court did not view sexual orientation as either a suspect or quasi-suspect class, it once again applied rational basis scrutiny. The Court noted, however, the almost unprecedented nature of the challenged law in specifically targeting a particular class of individuals:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. As the Court observed, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Id. The demand that “the classification bear a rational relationship to an independent and legitimate legislative end” serves to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 632-33. The Court observed that “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” and that a law denying one group of citizens the ability “to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633. Accordingly, the Court held that the amendment was “inexplicable by anything but animus toward the class it affects,” and, as such, “lack[ed] a rational relationship to legitimate state interests.” Id. at 632. The Court has also struck down federal legislation targeted at particular groups as violative of the principles of equal protection incorporated into the Fifth Amendment’s Due
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Process Clause. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Supreme Court found that a provision of the Food Stamp Act, which excluded from participation
any household that contained an individual unrelated to any other member of the household, was
passed to prevent hippies and hippie communes from participating in the program. The group
adversely affected by the legislation—hippies—was not a “suspect class” to which strict scrutiny
would be applied. Thus, the Supreme Court applied rational basis scrutiny to the challenged
provision. It nonetheless struck it down, reasoning that:
if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, a purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the [classification].
Id. at 534-35 (citation omitted). The Court recognized that, while “[t]raditional equal protection
analysis does not require that every classification be drawn with precise ‘mathematical nicety,’”
the classification before it was “not only ‘imprecise’, it is wholly without any rational basis.” Id.
at 538.
Most recently, in striking down the Defense of Marriage Act (“DOMA”), the Supreme
Court held that “[i]n determining whether a law is motived by an improper animus or purpose,
‘[d]iscriminations of an unusual character’ especially require careful consideration.” Windsor,
133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The Court went on to state:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.
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Id. at 2693. After reviewing the history of DOMA’s enactment, the text of the statute, and its far-ranging adverse impacts on same-sex married couples, the Court found it violated the Equal Protection Clause because “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695.
B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest.
Here, the record establishes that, just like the laws in Moreno, Plyler, Cleburne, Romer, and Windsor, the Executive Order was motivated by an impermissible animus against particular classes of individuals, and thus violates the most fundamental principles of equal protection.
First, as noted in Plaintiffs’ Brief, the Executive Order restricts entry into the country and/or travel outside the country of individuals based solely on their national origin. Accordingly, even applying “the most deferential of [equal protection] standards,” the Order’s targeting of individuals from the identified countries would be permissible only if there exists a “relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632.
Second, although national origin distinctions may not seem as overtly pernicious in the area of immigration regulation, the background to the Executive Order reflects that the use of national origin designations was a surrogate for targeting individuals practicing the Muslim faith. As noted earlier, while a candidate, President Trump advocated for a complete bar on Muslims entering the United States. See Aziz v. Trump, No. No. 1:17-CV-116-(LMB/TCB), 2017 WL 580855, at *4 (E.D. Va. Feb. 13, 2017). After receiving pushback concerning the legality of his proposed Muslim Ban, then-candidate Trump telegraphed that, in order to accomplish his objective of banning Muslims while potentially subverting judicial review, he would use territories that were predominately Muslim as a surrogate for targeting Muslims directly. In
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response to a question about whether he had changed his position that Muslims should be banned, Trump stated “call it whatever you want. We’ll call it territories, OK?” Aziz, 2017 WL 580855, at *4; see also Amended Compl. ¶ 59 (“People were so upset when I used the [word] Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim”) (citing Meet the Press, NBC, July 24, 2016.) (internal quotation marks omitted).
President Trump signed Executive Order No. 13,769 on January 27, 2017. Soon thereafter, Rudy Giuliani, who advised the Trump Campaign, admitted that it was meant to effectuate the Muslim ban while circumventing judicial scrutiny. Amended Compl. ¶ 69 (“So when [Mr. Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”) (internal quotation marks omitted). In fact, hours before signing Executive Order No. 13,769, President Trump had belied its “territorial,” non-religious focus by publically stating that Christians from the seven impacted nations would be given priority as refugees. Id. at ¶ 68; see also Aziz, 2017 WL 580855, at *4. This unapologetically transparent record of the invidious motivation behind the Executive Order undermines the Government’s post hoc efforts to attribute a lawful purpose to its action.
As U.S. District Judge Brinkema of the Eastern District of Virginia concluded in enjoining the original Executive Order as violative of the establishment clause, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Aziz, 2017 WL 580855, at *8. The Court thus found that there was “direct evidence” that the Executive Order was an attempt to find a legal way to impose a ban on Muslims entering the United States. Id. at *9. The Government, however, cannot evade the strictures of the
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Constitution merely by “deferring to the wishes or objections of some fraction of the body politic.” Cleburne, 473 U.S. at 448.
After multiple courts, including the Eastern District of Virginia, stayed or preliminarily enjoined the first iteration of the order, President Trump signed the revised version that is now before the Court. Although the Executive Order at issue here eliminates some of the more egregious provisions of the prior order (e.g., it no longer applies to lawful permanent United States residents), it continues to be the means for implementing the anti-Muslim animus that gave rise to the first order. It still targets only Muslim-majority countries, and contains no legitimate justification for suspending entry into the United States of those born in those countries. In fact, Stephen Miller, a senior advisor to President Trump, declared that the Executive Order contains only “minor technical differences” from the prior order in an attempt to respond to the “flawed” and “erroneous” judicial rulings striking the first order down, and that it will “fundamentally have the same policy outcome for the country.”13
It is therefore hardly surprising that the Federal District Courts of both Hawai‘i and Maryland have concluded that the new Executive Order remains motivated by impermissible animus towards Muslims. See Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *13 (D. Haw. Mar. 15, 2017) (analyzing statements of President Trump and his administration and determining that the current Executive Order remained motivated by “religious animus”); accord Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1018235, at *13 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17,
13 Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-ban-willhave-same-basic-policy-outcome.html.
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2017).14 The Hawai‘i court in particular found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Hawai‘i, 2017 WL 1011673, at *13.
President Trump campaigned on a promise that he would institute a “Muslim Ban,” and both he and his advisors have publically stated that the Executive Order is an attempt to accomplish that ban while subverting the courts’ ability to subject it to Constitutional review. This Court should take the President and his advisors at their word. Cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 865-66 (2005) (in affirming the relevance of the background to and history of challenged legislation, the Court noted that “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions . . . .”).
C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims
Given the clear animus towards Muslims that gave rise to the Executive Order, the Supreme Court’s jurisprudence would require careful judicial examination of the stated justification for the Order, safeguarding national security, even if the Court determined that, as an executive action regarding immigration, the Executive Order is subject to rational basis review. That the Government’s justification for this policy is national security does not lessen this Court’s duty to ensure the policy is constitutional. Washington, 847 F.3d at 1163 (“[F]ederal courts routinely review the constitutionality of—and even invalidate—actions taken by the
14 In striking down the Executive Order as violative of the Establishment Clause, neither court reached the question of whether the Executive Order also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
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executive to promote national security, and have done so even in times of conflict.”).15 Any meaningful review demonstrates that the purported national security justification for the Executive Order is merely a pretext for anti-Muslim animus.
The Executive Order suspends immigrant and refugee entry into the United States of aliens from Syria, Iran, Libya, Sudan, Yemen, and Somalia for 90 days. Section 1 of the Order is titled “Policy and Purpose.” There, it states that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.” Executive Order, Section 1(h). Remarkably, the Executive Order then identifies only one such individual who was born in any of the affected countries.16 It goes on to state that “[t]he Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” However, the Executive Order makes no effort to tie these general claims about terrorism to the specific Muslim-majority countries on the Executive Order. Nor does the Executive Order afford a breakdown of whether these persons have actually committed terrorist acts, as opposed to merely having been the subject of investigations.
In fact, since 1975, not a single American has been killed in a terrorist attack by a person born in any of the six countries.17 The impacted countries also are unrelated to terrorism-related
15 See also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”) 16The Order also identifies two individuals from Iraq, a country not subject to the blanket prohibitions contained in the revised Order. 17 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumpsexecutive-order-limit-migration-national-security-reasons.
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arrests. For instance, not a single immigrant from Libya or Syria, two countries targeted by the
Executive Order, was arrested on terrorism charges between 1975 and 2015. In contrast, nine
immigrants from Croatia and eleven from Cuba, two countries unaffected by the Executive Order, were arrested on terrorism related charges in that timespan.18
Nor can the Executive Order’s singling out of the designated Muslim countries be
justified, as Section 1(d) purports to do, by citing their supposedly questionable vetting
procedures for immigrants. In a March 6, 2017 interview with CNN, Secretary of Homeland
Security John Kelly admitted that there are an additional “13 or 14 countries, not all of them
Muslim countries, not all of them in the Middle East, that have questionable vetting procedures . . . .”19 Once again, the Government merely uses these vetting procedures as a pretext for a law
targeted at Muslims. The Executive Order simply does not contain a shred of factual support for
a broad sweeping travel ban against natives of the particular identified countries.
To the contrary, recently publicized documents from the Department of Homeland
Security contradict the security justification for the Executive Order. In fact, one document is titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States.”20 In
analyzing terrorist attacks since 2011, it finds no relationship between those attacks and
citizenship:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals . . . died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization . . . . Of the 82 individuals we
18 Id. 19 Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kellytravel-ban-muslim-countries/. 20 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-contradict-travel-bantrump/98374184/.
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identified, slightly more than half were native-born United States citizens. Of the foreign born individuals, they came from 26 countries, with no one country representing more than 13.5 percent of the foreign-born total.21
The report further finds that “[r]elatively few citizens of the seven countries impacted by
[Executive Order 13,769], compared to neighboring countries, maintain access to the United
States,” and that “[f]ew of the [i]mpacted [c]ountries [h]ave [t]errorist [g]roups that [t]hreaten the
West.”22
Another memorandum from the Department of Homeland Security undercuts the other
purported justification for Executive Order, the need to enhance screening procedures for
individuals traveling from the six targeted countries. The Department of Homeland Security
memorandum questions the link between screening practices in general and preventing terrorism.
It concludes that:
We assess that most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns. We base this assessment on our findings that nearly half of the foreign-born, US-based violent extremists examined in our dataset were less than 16 years old when they entered the country and that the majority of foreign-born individuals resided in the United States for more than 10 years before their indictment or death. A separate DHS study that found that recent foreign-born US violent extremists began radicalizing, on average, 13 years after their entry to the United States further supports our assessment.23
In fact, the Executive Order’s reference to terrorist activities by the lone native of an affected
country—a Somalian refugee convicted on terrorism charges—proves the point. Executive
Order, Section 1(h). Mohamed Osman Mohamud came to the United States as a child refugee at
21 Id. at 1. 22 Id. at 2. 23 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-documentundermines-trump-case-travel-ban.
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the age of five; however, his arrest on terrorist-related charges occurred when he was 19-years old.24 As the Department of Homeland Security memorandum notes, “screening and vetting
officials” are not likely to be able to account for radicalization that occurs 14 years after entry.
Taken together, these Department of Homeland Security memoranda demonstrate the
pretextual nature of the national security justification for imposing an immigration ban on these
six Muslim-majority nations. The Department of Homeland Security does not find citizenship to
be a likely indicator of future terrorist activity and does not find enhanced screening procedures
to be an effective method of preventing terrorists from entering the country. Thus, an Order that
imposes an immigration ban on the basis of citizenship (as a pretext for religion) in order to
enhance future screening processes flies in the face of the assessment of the very government
agency charged with protecting national security from terrorist threats.
National security experts also concur that the Executive Order is not rationally related to
national security. In Aziz, the court preliminarily enjoined Executive Order 13,679 and, in doing
so, credited a declaration from 10 national security professionals who did not believe that the
Executive Order was related to any security interest. They stated:
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Aziz, 2017 WL 580855, at *3. Following the issuance of the new Executive Order, more than
130 members of American’s foreign policy establishment have issued a letter publically 24 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_bomb_plot.html.
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denouncing the travel ban as damaging to national security.25 The authors of the letter, who include former Secretaries of State John Kerry and Madeline Albright, conclude:
The revised executive order will jeopardize our relationships with allies and partners on who we rely for vital counterterrorism cooperation and information-sharing. To Muslims—including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision.26 In sum, although passed under the pretext of national security, the Executive Order does not bear any rational relationship to concerns about national security or any other legitimate government interests. Instead, as was clear by the President’s statements prior to his signing the Order, it is motivated by religious animus towards Muslims. Such a law cannot be allowed to stand in our society. As the Moreno Court recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534-45. III. CONCLUSION For the foregoing reasons, the Court should grant the requested injunction against implementation of the Executive Order.
25 Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html. 26 Id.
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DATED: March 28, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) bernabei@bernabeipllc.com Alan R. Kabat (Bar No. 464258) kabat@bernabeipllc.com Christopher Sousa (Bar No. 1018547) sousa@bernabeipllc.com BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

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 Case 1:17-cv-00255-TSC Document 38 Filed 03/23/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

____________________________________)

MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES OF CIVIL RIGHTS ORGANIZATIONS FOR LEAVE TO FILE A BRIEF AS AMICI
CURIAE

The American-Arab Anti-Discrimination Committee, the Center for Constitutional

Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights,

The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice,

the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the

Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights

and Urban Affairs, (collectively, the “Civil Rights Organizations”), through undersigned counsel,

hereby move, pursuant to Rule 7(b) of the Federal Rules of Civil Procedure, for leave to file a

brief as amicus curiae, on the side of the Plaintiff.

In support of this Motion, the Civil Rights Organizations state as follows:

1. The Center for Constitutional Rights (“CCR”) is a national non-profit legal and

educational organization dedicated to advancing and protecting the rights guaranteed by the

United States Constitution and international human rights law. Founded in 1966, CCR has a long

history of litigating cases on behalf of those with the fewest protections and least access to legal

resources.. CCR regularly works with communities targeted by state discrimination, including

34246425.1

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Muslim Arab and South Asian (MASA) communities, which face distinct vulnerabilities at the intersection of national security and immigration. CCR has brought numerous cases challenging state practices premised on overbroad and stigmatizing assumptions about communities, including MASA communities. See Ziglar v. Abbasi, cert. granted, No. 15-1359, 2016 U.S. LEXIS 6272 (Oct. 11, 2016) (decision pending), (challenging discriminatory conditions of immigration detention against MASA individuals in connection with 9/11 investigations); Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015) (finding unconstitutional NYPD suspicionless surveillance program targeting Muslim communities in New Jersey); Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding unconstitutional and racially discriminatory, New York City’s widespread practice of “stop and frisk.”).
2. The Judge David L. Bazelon Center for Mental Health Law is a national public interest organization founded in 1972 to advance the rights of individuals with mental disabilities. The Bazelon Center advocates for laws and policies that provide people with mental illness or intellectual disability the opportunities and resources they need to participate fully in their communities. Its litigation and policy advocacy is based on the Americans with Disabilities Act’s guarantees of non-discrimination and reasonable accommodation. People with mental illness or intellectual disability commonly face discrimination based on myths and stereotypes, and the eradication of such discrimination is among the Bazelon Center’s primary goals.
3. The Washington Lawyers’ Committee for Civil Rights and Urban Affairs is a non-profit civil rights organization established to eradicate discrimination and poverty by enforcing civil rights laws through litigation. In furtherance of this mission, the Washington Lawyers’ Committee has a dedicated Immigrant Rights Project, which has served as a critical resource for some of the most vulnerable populations in the Washington, D.C. area: newcomers
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and non-English speakers, who are often discriminated against on the basis of their religious background or national origin, and who are often unaware of their rights and protections under U.S. law.
4. Mississippi Center for Justice is a 501(c)(3) nonprofit public interest law organization founded in 2003 in Jackson, Mississippi and committed to advancing racial and economic justice. Supported and staffed by attorneys and other professionals, the Center develops and pursues strategies to combat discrimination and poverty statewide. One of amicus’ original areas of interest involved predatory loan practices directed at migrant poultry workers, and MCJ has remained concerned about the plight of Mississippi’s growing immigrant population for the last decade, particularly in the areas of access to healthcare, education, housing and fair lending.
5. The Center for Reproductive Rights (“CRR”) is a global human rights organization that uses the law to advance reproductive freedom as a fundamental right that all governments are legally obligated to respect, protect, and fulfill. In the United States, CRR’s work focuses on ensuring that all people have access to a full range of high-quality reproductive health care. Since its founding in 1992, CRR has been actively involved in nearly all major litigation in the U.S. concerning reproductive rights, in both state and federal courts, including most recently, serving as lead counsel for the plaintiffs in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). As a rights-based organization, the Center has a vital interest in protecting individuals endeavoring to exercise their fundamental rights free from unwarranted government intrusion and discrimination. CRR’s ability to bring litigation challenging executive and regulatory action, and to seek relief where individuals are threatened with irreparable harm, is crucial to its mission.
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6. The American-Arab Anti-Discrimination Committee (“ADC”) is the country’s largest Arab American grassroots civil rights organization. Founded in 1980 by U.S. Senator James Abourezk, ADC consists of members from all 50 states and has multiple chapters nationwide. ADC conducts legal and policy work on immigration with a focus on asylum and refugee issues, and advocacy against discriminatory immigration laws, policies and regulations. ADC’s interest in this Case arises from the impact this Case decision will have on our constituents’ fundamental constitutional and federal rights.
7. Chicago Lawyers’ Committee for Civil Rights (CLCCR) is a 501(c)(3) nonprofit public interest law organization founded in 1969. CLCCR works to secure racial equity and economic opportunity for all. CLCCR provides legal representation through partnerships with the private bar, and collaborates with grassroots organizations and other advocacy groups to implement community-based solutions that advance civil rights. In all practice areas, including education equity, fair housing, economic opportunity, hate crime prevention and voting rights, CLCCR advocates for immigrants who have been subject to racially-discriminatory governmental practices and policies. CLCCR’s goal is to ensure that America fulfills its promise of democracy and equal justice for all.
8. The National Center for Lesbian Rights (“NCLR”) is a national non-profit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in combating discrimination and securing fair and equal treatment for LGBT people and their families in cases across the country involving constitutional and civil rights. NCLR has a particular interest in protecting the rights of LGBT immigrants and other immigrants to this country. Since 1994,
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NCLR’s Immigration Project has provided free legal assistance to thousands of LGBT immigrants nationwide through, among other services, direct representation of immigrants in impact cases and individual asylum cases and advocacy for immigration and asylum policy reform.
9. Southern Coalition for Social Justice is a 501(c)(3) nonprofit public interest law organization founded in 2007 in Durham, North Carolina. SCSJ partners with communities of color and economically disadvantaged communities in the south to advance their political, social, and economic rights through the combination of legal advocacy, research, organizing and communications. Originally, one of amicus’ primary practice areas was immigrants’ rights and it remains important to our mission. SCSJ frequently advocates on behalf of immigrants who have been subject to racially-discriminatory governmental practices, and promotes the application of basic human rights principles to policies affecting migrant communities.
10. The National Coalition on Black Civic Participation is a 501(c)(3), non-profit, non-partisan organization dedicated to increasing civic engagement and voter participation in Black and underserved communities. The National Coalition strives to create an enlightened community by engaging people in all aspects of public life through service/volunteerism, advocacy, leadership development and voting. For nearly 40 years, The National Coalition has served as an effective convener and facilitator at the local, state and national levels of efforts to address the disenfranchisement of underserved and other marginalized communities through civic engagement.
11. This case, and several other related cases that seek to enjoin President Trump’s March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” are important, and the participation of Civil Rights Organizations is desirable.
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The Amici are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form.
12. A court may grant leave to appear as amicus curiae if the information offered is timely and useful. Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). In Ellsworth, the court granted a motion to file an amicus curiae brief because the movants “have a special interest in [the] litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution” of those issues. Id. The Civil Rights Organizations respectfully submit that this standard is met here.
13. Amici’s proposed brief presents two arguments. First, amici submit that the public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, as the Order improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order’s focus on a religious minority demands strict scrutiny by this Court of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, even if this court were to review the Executive Order under a “rational basis” test, amici write separately to argue that the Order would still violate equal protection.
14. The proposed amici curiae brief is attached as an exhibit to this Motion. Local Civil Rule 7(m) Statement
Undersigned counsel, by email, determined that Jon Greenbaum, counsel for Plaintiff, consented to the filing of this motion. Undersigned counsel sent an email to Daniel S. Schwei, counsel for the Defendant, who indicated that the Government took no position on our request to
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file this motion. DATED: March 23, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) Alan R. Kabat (Bar No. 464258) Christopher Sousa (Bar No. 1018547) BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

7

Case 1:17-cv-00255-TSC Document 38-1 Filed 03/23/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

ORDER

Upon consideration of the Motion of the Center for Constitutional Rights, The Judge

David L. Bazelon Center for Mental Health Law, the Washington Lawyers’ Committee for Civil

Rights and Urban Affairs, the Mississippi Center for Justice, the Center for Reproductive Rights,

the American-Arab Anti-Discrimination Committee, the Chicago Lawyer’s Committee for Civil

Rights, the National Center for Lesbian Rights, and the Southern Coalition for Social Justice

(collectively, the “Civil Rights Organizations”), filed on March 23, 2017, for leave to file a brief

as amici curiae, any response, and the entire record of this case, and having determined that good

cause has been shown for granting the Motion, it is hereby,

ORDERED that the Motion is granted; and it is

FURTHER ORDERED THAT the Civil Rights Organizations are granted leave to

participate as amici curiae in the above-captioned case; and it is

FURTHER ORDERED that the Clerk shall accept for filing the brief of the Civil Rights

Organizations as amici curiae.

So ordered this _____ day of _____________, 2017.

34248701.1

Case 1:17-cv-00255-TSC Document 38-1 Filed 03/23/17 Page 2 of 2 ___________________________ Hon. Tanya S. Chutkan U.S. District Court Judge
34248701.1 2

Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

AMICI CURIAE BRIEF OF NATIONAL AND REGIONAL CIVIL RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 2 of 33
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES
DANGEROUS CONDITIONS FOR MEMBERS OF MINORITY GROUPS. .................2 A. Stereotyping Minority Groups Creates A Climate For Discrimination. ..................2 B. The Executive Order Is Based On Stereotypes About Muslims And Arabs
As “Anti-American” And “Terrorists.” ...................................................................5 C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged
Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. ...........................................................8 II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST ..................................................................11 A. Animus Towards A Particular Group Is Not A Legitimate Government Interest....................................................................................................................11 B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest. ............................17 C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims ...................20 III. CONCLUSION..................................................................................................................25
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 3 of 33
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) ......................................................................................................3
Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2011) ...................................................................................................12
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)...........................................................17, 18, 19, 24
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...............................................................................................12
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)...................................................................................................................4
Buck v. Davis, 580 U.S. ____, 137 S. Ct. 759 (2017)....................................................................................4, 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................................... 12, passim
Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985) .............................................................................................13
Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) .....................................................................................................4
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...................................................................................................................2
Hassan v. City of New York, 804 F.3d (2d Cir. 2016)..............................................................................................................3
Hawai‘i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).....................................................................19, 20
Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ...........................................................................................................19
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................11
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 4 of 33
Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...................................................................................................................2
Loving v. Virginia, 388 U.S. 1 (1967).......................................................................................................................4
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................9
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................20
Miller-El v. Dretke, 545 U.S. 231 (2005)...................................................................................................................3
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)...................................................................................................................3
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................13, 14, 17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................................................................2
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) .....................................................................................................3
Romer v. Evans, 517 U.S. 620 (1996)...............................................................................................13, 15, 16, 17
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)...................................................................................................................8
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................2
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) ........................................................................................................3
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...............................................................................................13, 16, 17, 25
United States v. Robel, 389 U.S. 258 (1967).................................................................................................................21
United States v. Stephens, 421 F.3d 503 (7th Cir. 2005) .....................................................................................................3
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 5 of 33
United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................................12, 16, 17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...........................................................................................11, 20
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................................................12
FEDERAL REGULATIONS
82 Fed. Reg. 13,209 (Mar. 9, 2017).................................................................................................7
82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................................................6
OTHER AUTHORITIES
Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP .....................................................................10
Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons ...................................................................................................21, 22
C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). .................................................................................................................7
Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kelly-travel-ban-muslimcountries ...................................................................................................................................22
David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climate-racial-intolerance%E2%80%99-fueled-anti-muslimpolitical-rhetoric .......................................................................................................................10
Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travelban-will-have-same-basic-policy-outcome.html .....................................................................19
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 6 of 33
Helena Horton, Muslim ban statement ‘removed’ from Donald Trump’s website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statementremoved-from-donald-trumps-website/. ....................................................................................5
Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/ ...............................................................................................................................5
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) ....................13
Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html ...................................................................................25
Louis Nelson, Trump on immigration order: Call it what you want — it’s about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trump-immigration-order-ban-no-ban234477........................................................................................................................................6
Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_b omb_plot.html ..........................................................................................................................24
Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kent-shooting-victim-sayshe-was-told-go-back-to-your-own-country/. ...........................................................................10
N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trumpforeign-policy.html?_r=0 ...........................................................................................................6
Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017)..............................................................................................................7
Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science (Nov. 26, 2004) ..........................................................................................................................................7
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)......................................................................................4
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/dhsmemo-contradict-travel-ban-trump/98374184/..................................................................22, 23
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 7 of 33 Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes
about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004)........................................4 Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc.
Psychol. 371, 375-76 (1963) ......................................................................................................4 Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et
al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998) ...........................................2 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC
(Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddowshow/trms-exclusive-dhs-document-undermines-trump-case-travel-ban ................................23
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INTRODUCTION Amici, the American-Arab Anti-Discrimination Committee, the Center for Constitutional Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights, The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice, the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form. The amici respectfully submit this brief to advance two separate but related arguments. First, amici submit that the balance of equities and public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”), as it improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order targets a religious minority in a manner that demands that this Court apply strict scrutiny to the question of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, amici write separately to argue that, even if this court were to review the Executive Order under a “rational basis” test, the Order would still violate the Constitution’s equal protection guarantee. Regardless how the Government has sought to characterize or revise the Order after the fact, the evidence demonstrates that it is motivated by animus toward Muslims and those born in the targeted majority-Muslim countries, and not by any demonstrable national security concerns. This motivating animus is not a legitimate government end under any level of scrutiny. As such, the
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Executive Order is unconstitutional. I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES DANGEROUS
CONDITIONS FOR MEMBERS OF MINORITY GROUPS. A. Stereotyping Minority Groups Creates A Climate For Discrimination. The balance of equities and public interest in this case weighs in favor of enjoining the Executive Order due to the dangerous and discriminatory conditions it engenders. The courts have generally recognized that stereotyping of minority groups has a negative effect on individuals within those groups and creates a climate ripe for discrimination. Categorization, or social categorization, is the natural cognitive process by which people place individuals into particular social groups. Social categorization essentially has the effect of exaggerating between-group differences while minimizing within-group differences, thereby increasing perceived homogeneity within groups. Some categorization is “automatic,” but much categorization is built on social cues. “Stereotyping, prejudice, and discrimination clearly profit from context-driven processes such as categorization . . . .” Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998). In light of the extensive social science research on this subject, the Supreme Court has repeatedly stated that discriminatory stereotypes impact decision making. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (recognizing disparate impact liability in housing decisions to prevent segregated housing patterns that might otherwise result from the role of “covert and illicit stereotyping”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing the role that sex stereotyping played in employment discrimination case, explaining “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision), superseded by statute as
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stated in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability); accord Miller-El v. Dretke, 545 U.S. 231, 268 (2005) (“Subtle forms of bias are automatic, unconscious, and unintentional and escape notice, even the notice of those enacting the bias.”) (citations omitted). Further, the Court’s precedent outlines the negative effects that arise from stereotyping and social categorization. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (addressing Equal Protection claims relating to school integration efforts and recognizing harms traceable to “pernicious” racial classifications and school segregation).
The circuit courts also recognize that social categorization and stereotyping often create the conditions for discrimination in areas such as provision of housing, employment decisions, and police motivations. See Hassan v. City of New York, 804 F.3d, 306 (2d Cir. 2016) (rejecting “appeals to ‘common sense’” which “might be infected by stereotypes” as sufficient to justify police surveillance of Muslim individuals, business, and institutions) (quoting Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of “unlawful animus” in an employment discrimination case because “unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999)); United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury selection and the outcome of trials); Eastman Kodak Co., 183 F.3d 42 (holding Title VII’s ban on “disparate treatment because of race” includes “acts based on conscious racial
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animus and . . . employer decisions that are based on stereotyped thinking)); Gonzalez-Rivera v. INS, 22 F.3d 1441, 140 (9th Cir. 1994) (recognizing in police stop case that “officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so”).
Stereotyping of all kinds can be exacerbated through a psychological triggering phenomenon known as “priming.” Priming occurs when “subtle influences . . . . increase the ease with which certain information comes to mind.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness at 69 (2009). In the case of racial stereotyping, which shares many attributes with stereotyping of Muslims, priming an individual with race-based stereotypes can influence later decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004). Social science research repeatedly demonstrates that individuals have a persistent tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963). The connection between state sanctioned discrimination and private harm is clearest in the Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court recognized that discrimination with the sanction of law raises unique and particular dangers.
The Supreme Court very recently said that discriminatory harm can be heightened when it is officially legitimized. In Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), the Supreme Court held that the use of a defense expert in the sentencing phase of a capital trial to testify that African-Americans are more likely to commit violent crimes constituted ineffective assistance of counsel in violation of the Sixth Amendment. According to the Court, the effect of the racial stereotyping on the jury was “heightened due to the source of the testimony. [The expert] took
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the stand as a medical expert bearing the court’s imprimatur.” Id. at 777. B. The Executive Order Is Based On Stereotypes About Muslims And Arabs As “Anti-American” And “Terrorists.” As in the cases cited above, the Muslim ban bears the imprimatur of the Executive
Branch, engendering precisely the type of discriminatory harms that the Court has held cannot withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump issued a written statement calling for a “total and complete shutdown on Muslims entering the United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has been a major item on his policy agenda.1 At that time, his campaign explained that “there is great hatred towards Americans by large segments of the Muslim population.” He also characterized the need for a bar on Muslim and Arab entry into the United States as a way to stop our country from being the “victims of horrendous attacks by people that believe only in Jihad.”2 Before a single vote was cast, President Trump distinguished his campaign by expressly categorizing Muslims as “dangerous” and “terrorists.”
Mr. Trump’s categorization of Muslims has been ongoing. On January 4, 2016, the Trump campaign premiered its first television advertisement. That advertisement told viewers that Trump was “calling for a temporary shutdown of Muslims entering the United States” until doubts about “radical Islamic terrorism” can be “figure[d] out.”3 The link the President drew between “radical Islamic terrorism” and all individual Muslims entering the United States could not be more strongly established. Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that “the struggle against radical Islam also takes place in our 1 Helena Horton, Muslim ban statement 'removed' from Donald Trump's website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statement-removedfrom-donald-trumps-website/. 2 Id. 3 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
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homeland. . . . We must stop importing extremism through senseless immigration policies.”4 Again, through allusion to the individual Muslims entering the United States through legitimate means, Trump emphasized that he draws a connection between individual Muslims and the “struggle against radical Islam.”
Just one week after his Inauguration, President Trump acted to fulfill his campaign pledge and codify his campaign rhetoric. On January 27, 2017, he signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017). Among the immigration restrictions contained in Executive Order 13,769 was a temporary ban of all nationals from seven majority-Muslim countries from entering the United States: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. Section 1 of E.O. 13,769 explained that the Order is intended to ensure that the United States stays “vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
While many surrogates of the current Administration pushed back at the characterization of E.O. 13,769 as a “Muslim ban,” the President embraced it, which demonstrated his embrace of the social categorization of Muslims as “dangerous” and “terrorists.” He told the public via Twitter that “[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of country!”5 Throughout his campaign, and now in office, President Trump has voiced his view of Muslims as threats to national security.
After multiple courts enjoined enforcement of E.O. 13,769, the Trump Administration
4 N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html?_r=0. 5 Louis Nelson, Trump on immigration order: Call it what you want — it's about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trumpimmigration-order-ban-no-ban-234477.
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announced plans to make revisions to that order. On March 6, the Administration issued E.O. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). The revised Executive Order preserves several core provisions of the prior Order, including the suspension of the United States Refugee Admissions Program for 120 days, and the suspension of entry into the United States of nationals of six of the majority-Muslim countries designated in E.O. 13,769 for 90 days. See §§ 6(a); 2(c). Like E.O. 13769, the new Order targets only majority-Muslim countries.
This official action of marking a social group, Muslims, as a dangerous “fifth column,” only aggravates societal biases against Muslims and Arabs in this country. It creates conditions where violence against Muslims is seen as more acceptable because they are perceived stereotypically as “bad people.” A “sample of U.S. citizens on average viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially sincere, honest, friendly, or warm.” Susan T. Fiske, et al, Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science, 206, 1482-1483 (Nov. 26, 2004). More recent social science detailing the administration of “implicit association tests” demonstrates both the already-existing climate of prejudice against Muslims and Arabs and the unconscious nature of that bias: “Non-Arab and non-Muslim test takers manifested strong implicit bias against Muslims. These results are in sharp contrast to self-reported attitudes.” C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). In 2011, the Pew Research Center surveyed Western cultures to determine the characteristics they associate with people in the Muslim world. That survey found that about half of respondents characterized Muslims as “violent,” and more than half characterized Muslims as “fanatical.”6 The Executive Order exacerbates already
6 Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017).
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existing, but latent, stereotypes and prejudices against individual Muslims in the United States. C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. There can be no doubt that, given its origin and history, the Executive Order is based on
social categorization of Muslims as “anti-American,” “terrorists,” and those with “hatred for Americans.” In this case, President Trump’s repeated, unsubstantiated claims that Muslims are dangerous, and should be barred from entering the country, are just the “cue” needed to release other suppressed discrimination and violent beliefs held by those harboring ill will or unconscious bias against Muslims. The President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the immigration of Muslims and Arabs into the country, places an official “imprimatur” on those stereotypes, magnifying their effect.
When someone in a position of authority, as President Trump, categorizes Muslims as dangerous and terrorists, he creates the message that Muslims are “outsiders” and not full members of the political community. In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000), the Court found unconstitutional a school sponsored religious message, delivered over the school’s public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to a school policy. The Court’s reasoning was based on its view that the school policy created two classes of people—those who adhered to the favored religion, and those who did not. Id.
The President’s strong and consistent support of what he calls a “Muslim ban” similarly sends the message that those who adhere to Islam as their religion are not part of American society, as opposed to Christians and non-Muslims, who are favored by the ban. In doing so, he “send[s] a message to non-adherents [to the Christian faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are
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insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring). The Executive Order and the President’s statements characterize Muslims as homogenous and a national threat. The President’s demonization of Muslims engenders a climate conductive to violence against people seen as Muslims.
In the short aftermath of the Executive Order and its predecessor, E.O. 13,769, and their chaotic implementation, anti-Muslim hate crimes have flourished. The February 22, 2017 shootings of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as enemies of the American people. Kuchibhotla and Madasani, two engineers at a local technology company, and both Indian immigrants to the United States, had gathered with co-workers at a bar near their office to watch a local college basketball game. Also at that bar was Adam Purinton, a 51-year-old U.S. Army veteran who mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities categorized by the Executive Order and its predecessor as barred from entry into the United States). Purinton approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!” Kuchibhotla was killed, and Madasani was wounded, in the incident. Ian Grillot, a patrolman present at the scene, was wounded while attempting to intervene. Purinton fled across the state border into Missouri, telling a bartender in a second bar that he needed to hide out because he had just shot two Iranians. Putting aside Purinton’s stereotyped view that his victims were Iranians simply because they appeared to be foreign-born immigrants, his actions demonstrate the danger that social categorization can cause by exaggerating both the distance between in-groups (“real Americans”) and out-groups (“Iranians”), as well the homogeneity of the out-group. As the Southern Poverty Law Center described the Olathe violence, “shocking hate crimes” “emerge not from a vacuum, but always from an environment that encourages and
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fosters [that] kind of violence.”7 In addition, a rash of arsons and vandalism at mosques has plagued the United States
surrounding the issuance of E.O. 13,769. On January 27, 2017, the very date of the first order, a fire destroyed the Islamic Center of Victoria, Texas. On February 24, 2017, a blaze broke out in the entrance of the Daarus Salaam Mosque near Tampa, Florida. Combined with two arsons of mosques shortly before President Trump’s inauguration, the United States has seen a surge of hate crimes against the Muslim community that is unprecedented. A spokesperson at the Southern Poverty Law Center told reporters that “four mosques being burned within seven weeks of each other” was “part of a whole series of dramatic attacks on Muslims.”8
Other recent attacks on mosques in the United States include a rock thrown through a window of the Masjid Abu Bakr mosque in Denver, Colorado and vandals destroying the entrance sign at the Muslim Association of Puget Sound in Redmond, Washington. On March 5, 2017, a Sikh man was shot in his Kent, Washington driveway when a man approached him and said “go back to your own country.”9
Rather than incitement of crime and hatred, the public interest in this county is best served by tolerance of different religions as the Constitution requires, and tolerance of both foreign-born and American-born adherents of different religions. The insidious effect of the Muslim and Arab ban does not impact merely those persons seeking to enter the United States
7 David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99-%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 8 Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017-begins?utm_term=.rhx3bJRw6#.wcxEQDMKP. 9 Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kentshooting-victim-says-he-was-told-go-back-to-your-own-country/.
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from the six designated countries. By promoting malevolent social stereotypes and fueling violence against a minority, the Executive Order fundamentally threatens the American ideal of a diverse society made up of different of ethnic groups, races, and religions. II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT INTEREST Plaintiffs’ Motion for a Preliminary Injunction sets forth in detail why the Executive Order discriminates on the basis of national origin and religion and thus is subject to strict scrutiny review. See ECF No. 35. Amici agree with Plaintiffs that the Executive Order is properly subject to, and fails, strict scrutiny. Amici write separately to argue that, even if the Executive Order were reviewed under a more deferential standard for which Defendants presumably will advocate,10 the Order would still violate the Equal Protection Clause because it is motivated by an animus toward Muslims and those born in the targeted majority-Muslim countries, and has no rational relationship to any legitimate governmental purpose. A. Animus Towards A Particular Group Is Not A Legitimate Government
Interest. Strict scrutiny under the equal protection clause applies where the Government singles out a suspect class or interferes with the exercise of a fundamental right. Where strict scrutiny applies, the challenged law is presumed to be invalid, and will survive judicial review only if the Government can show that it is “narrowly tailored” to further “compelling governmental interests.” See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (citation and internal quotation marks omitted). In contrast, the rational basis standard treats governmental conduct as
10 In the related Washington v. Trump proceeding, Defendants argued that the Executive Order was actually not subject to any standard of review and was, in fact, unreviewable because it related to immigration and national security. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The Ninth Circuit rejected this argument noting that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Id. at 1162.
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presumptively valid, placing the burden on the challenger to prove that such conduct is not “rationally related to a legitimate state interest.” See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, the level of scrutiny is often a key factor in determining the outcome of an equal protection challenge to government action.
Government action fails even the more forgiving rational basis test, however, where it evinces animus directed against an unpopular group. As discussed below, where the history of a law reflects that it was motivated by animus against a particular class of people, the Court must give “careful consideration” to the government’s stated justification for the law. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). In such circumstances, courts will apply a more searching review to the stated justifications for the policy in order to determine whether the policy is, in fact, motivated by impermissible animus. In his concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Judge Holmes explored in depth the current state of what he called “animus” jurisprudence. Id. at 1097-103 (Holmes, J., concurring). He concluded that:
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. Id. at 1103; see Windsor v. United States, 699 F.3d 169, 180–81 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute”) (citation and internal quotation marks omitted); Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 691–93 (6th Cir. 2011) (noting that where Supreme Court found “that the legislation at issue was in fact intended to further an improper government objective,” it applied “rational basis with a bite”)
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(internal quotation marks omitted); Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983, 990–91 (D. Kan. 1985) (“In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required.”).11
Because animus is not a legitimate government interest, a long line of Supreme Court precedent holds that laws motivated by animus are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment (if enacted by state or local governments) and/or the Due Process Clause of the Fifth Amendment (if enacted by the federal government).
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court considered a Fourteenth Amendment challenge to a Texas statute that both denied state funding for the education of children not “legally admitted” into the United States and authorized school districts to deny enrollment to such children. The Court recognized that undocumented aliens did not constitute a suspect class, and that public schooling was not a Constitutional right.12 Nonetheless, in recognition of the seminal role that education occupies in the nation’s political and cultural heritage, and in the development of productive contributors to American society, the Court held that denying education to the entire class of undocumented alien children would be rational only if it furthered some substantial state goal. The Court then carefully reviewed the State’s purported bases for the legislation, which included deterring unlawful immigration, avoiding “special burdens” on the State’s educational system allegedly created by undocumented alien
11 See also Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne, Moreno, and Romer “depart[s] from the usual deference associated with rational basis review” and “commentators have correctly discerned a new rational basis with bite standard in such cases”). 12 The Supreme Court has recognized four suspect classes: race, religion, nationality, and alienage. The Court has also recognized two quasi-suspect classes—gender and illegitimacy—to which it applies a level of review known as intermediate scrutiny. See, e.g., Cleburne, 473 U.S. at 440-41.
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students, and refusing public education to a class of children deemed less likely to remain in the State and therefore make productive use of that education. Finding that the legislation would not meaningfully further any of these goals, and that a desire to punish children was not a legitimate government interest, the Court struck down as irrational a law that promoted “the creation and perpetuation of a subclass of illiterates within our boundaries.” Id. at 220, 230.
In Cleburne, the Court struck down a zoning ordinance that required special use permits for homes for individuals with Down syndrome, while not requiring such permits for various other residential facilities, including apartment houses, multi-family dwellings, boarding houses, and fraternity and sorority houses. The Court declined to treat those with an intellectual disability as a suspect or quasi-suspect class, and so applied rational basis review. However, the Court conducted a searching review of the stated reasons for the ordinance, and concluded that none of them provided any legitimate basis for differential treatment of the affected group.
One of the City’s purported justifications for the permit requirement was concern about “negative attitudes” of neighbors living close to a facility for the mentally disabled, and “fears” of elderly residents in the community. In finding that this stated justification lacked a rational basis, the Court noted that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for people with mental disabilities differently from apartment houses, multiple dwellings, and the like.” Id. at 448. Of particular relevance here, the Court stated that the Government “may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. Finding no evidence that the ordinance was rationally related to the objectives urged by the City, the Court concluded that “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Id. at 450.
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In Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated an amendment to the Colorado state constitution that nullified state laws prohibiting discrimination against same-sex couples. Because the Court did not view sexual orientation as either a suspect or quasi-suspect class, it once again applied rational basis scrutiny. The Court noted, however, the almost unprecedented nature of the challenged law in specifically targeting a particular class of individuals:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. As the Court observed, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Id. The demand that “the classification bear a rational relationship to an independent and legitimate legislative end” serves to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 632-33. The Court observed that “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” and that a law denying one group of citizens the ability “to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633. Accordingly, the Court held that the amendment was “inexplicable by anything but animus toward the class it affects,” and, as such, “lack[ed] a rational relationship to legitimate state interests.” Id. at 632. The Court has also struck down federal legislation targeted at particular groups as violative of the principles of equal protection incorporated into the Fifth Amendment’s Due
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Process Clause. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Supreme Court found that a provision of the Food Stamp Act, which excluded from participation
any household that contained an individual unrelated to any other member of the household, was
passed to prevent hippies and hippie communes from participating in the program. The group
adversely affected by the legislation—hippies—was not a “suspect class” to which strict scrutiny
would be applied. Thus, the Supreme Court applied rational basis scrutiny to the challenged
provision. It nonetheless struck it down, reasoning that:
if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, a purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the [classification].
Id. at 534-35 (citation omitted). The Court recognized that, while “[t]raditional equal protection
analysis does not require that every classification be drawn with precise ‘mathematical nicety,’”
the classification before it was “not only ‘imprecise’, it is wholly without any rational basis.” Id.
at 538.
Most recently, in striking down the Defense of Marriage Act (“DOMA”), the Supreme
Court held that “[i]n determining whether a law is motived by an improper animus or purpose,
‘[d]iscriminations of an unusual character’ especially require careful consideration.” Windsor,
133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The Court went on to state:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.
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Id. at 2693. After reviewing the history of DOMA’s enactment, the text of the statute, and its far-ranging adverse impacts on same-sex married couples, the Court found it violated the Equal Protection Clause because “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695.
B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest.
Here, the record establishes that, just like the laws in Moreno, Plyler, Cleburne, Romer, and Windsor, the Executive Order was motivated by an impermissible animus against particular classes of individuals, and thus violates the most fundamental principles of equal protection.
First, as noted in Plaintiffs’ Brief, the Executive Order restricts entry into the country and/or travel outside the country of individuals based solely on their national origin. Accordingly, even applying “the most deferential of [equal protection] standards,” the Order’s targeting of individuals from the identified countries would be permissible only if there exists a “relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632.
Second, although national origin distinctions may not seem as overtly pernicious in the area of immigration regulation, the background to the Executive Order reflects that the use of national origin designations was a surrogate for targeting individuals practicing the Muslim faith. As noted earlier, while a candidate, President Trump advocated for a complete bar on Muslims entering the United States. See Aziz v. Trump, No. No. 1:17-CV-116-(LMB/TCB), 2017 WL 580855, at *4 (E.D. Va. Feb. 13, 2017). After receiving pushback concerning the legality of his proposed Muslim Ban, then-candidate Trump telegraphed that, in order to accomplish his objective of banning Muslims while potentially subverting judicial review, he would use territories that were predominately Muslim as a surrogate for targeting Muslims directly. In
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response to a question about whether he had changed his position that Muslims should be banned, Trump stated “call it whatever you want. We’ll call it territories, OK?” Aziz, 2017 WL 580855, at *4; see also Amended Compl. ¶ 59 (“People were so upset when I used the [word] Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim”) (citing Meet the Press, NBC, July 24, 2016.) (internal quotation marks omitted).
President Trump signed Executive Order No. 13,769 on January 27, 2017. Soon thereafter, Rudy Giuliani, who advised the Trump Campaign, admitted that it was meant to effectuate the Muslim ban while circumventing judicial scrutiny. Amended Compl. ¶ 69 (“So when [Mr. Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”) (internal quotation marks omitted). In fact, hours before signing Executive Order No. 13,769, President Trump had belied its “territorial,” non-religious focus by publically stating that Christians from the seven impacted nations would be given priority as refugees. Id. at ¶ 68; see also Aziz, 2017 WL 580855, at *4. This unapologetically transparent record of the invidious motivation behind the Executive Order undermines the Government’s post hoc efforts to attribute a lawful purpose to its action.
As U.S. District Judge Brinkema of the Eastern District of Virginia concluded in enjoining the original Executive Order as violative of the establishment clause, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Aziz, 2017 WL 580855, at *8. The Court thus found that there was “direct evidence” that the Executive Order was an attempt to find a legal way to impose a ban on Muslims entering the United States. Id. at *9. The Government, however, cannot evade the strictures of the
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Constitution merely by “deferring to the wishes or objections of some fraction of the body politic.” Cleburne, 473 U.S. at 448.
After multiple courts, including the Eastern District of Virginia, stayed or preliminarily enjoined the first iteration of the order, President Trump signed the revised version that is now before the Court. Although the Executive Order at issue here eliminates some of the more egregious provisions of the prior order (e.g., it no longer applies to lawful permanent United States residents), it continues to be the means for implementing the anti-Muslim animus that gave rise to the first order. It still targets only Muslim-majority countries, and contains no legitimate justification for suspending entry into the United States of those born in those countries. In fact, Stephen Miller, a senior advisor to President Trump, declared that the Executive Order contains only “minor technical differences” from the prior order in an attempt to respond to the “flawed” and “erroneous” judicial rulings striking the first order down, and that it will “fundamentally have the same policy outcome for the country.”13
It is therefore hardly surprising that the Federal District Courts of both Hawai‘i and Maryland have concluded that the new Executive Order remains motivated by impermissible animus towards Muslims. See Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *13 (D. Haw. Mar. 15, 2017) (analyzing statements of President Trump and his administration and determining that the current Executive Order remained motivated by “religious animus”); accord Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1018235, at *13 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17,
13 Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-ban-willhave-same-basic-policy-outcome.html.
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2017).14 The Hawai‘i court in particular found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Hawai‘i, 2017 WL 1011673, at *13.
President Trump campaigned on a promise that he would institute a “Muslim Ban,” and both he and his advisors have publically stated that the Executive Order is an attempt to accomplish that ban while subverting the courts’ ability to subject it to Constitutional review. This Court should take the President and his advisors at their word. Cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 865-66 (2005) (in affirming the relevance of the background to and history of challenged legislation, the Court noted that “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions . . . .”).
C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims
Given the clear animus towards Muslims that gave rise to the Executive Order, the Supreme Court’s jurisprudence would require careful judicial examination of the stated justification for the Order, safeguarding national security, even if the Court determined that, as an executive action regarding immigration, the Executive Order is subject to rational basis review. That the Government’s justification for this policy is national security does not lessen this Court’s duty to ensure the policy is constitutional. Washington, 847 F.3d at 1163 (“[F]ederal courts routinely review the constitutionality of—and even invalidate—actions taken by the
14 In striking down the Executive Order as violative of the Establishment Clause, neither court reached the question of whether the Executive Order also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
- 20 AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 28 of 33
executive to promote national security, and have done so even in times of conflict.”).15 Any meaningful review demonstrates that the purported national security justification for the Executive Order is merely a pretext for anti-Muslim animus.
The Executive Order suspends immigrant and refugee entry into the United States of aliens from Syria, Iran, Libya, Sudan, Yemen, and Somalia for 90 days. Section 1 of the Order is titled “Policy and Purpose.” There, it states that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.” Executive Order, Section 1(h). Remarkably, the Executive Order then identifies only one such individual who was born in any of the affected countries.16 It goes on to state that “[t]he Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” However, the Executive Order makes no effort to tie these general claims about terrorism to the specific Muslim-majority countries on the Executive Order. Nor does the Executive Order afford a breakdown of whether these persons have actually committed terrorist acts, as opposed to merely having been the subject of investigations.
In fact, since 1975, not a single American has been killed in a terrorist attack by a person born in any of the six countries.17 The impacted countries also are unrelated to terrorism-related
15 See also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”) 16The Order also identifies two individuals from Iraq, a country not subject to the blanket prohibitions contained in the revised Order. 17 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumpsexecutive-order-limit-migration-national-security-reasons.
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 29 of 33
arrests. For instance, not a single immigrant from Libya or Syria, two countries targeted by the Executive Order, was arrested on terrorism charges between 1975 and 2015. In contrast, nine immigrants from Croatia and eleven from Cuba, two countries unaffected by the Executive Order, were arrested on terrorism related charges in that timespan.18
Nor can the Executive Order’s singling out of the designated Muslim countries be justified, as Section 1(d) purports to do, by citing their supposedly questionable vetting procedures for immigrants. In a March 6, 2017 interview with CNN, Secretary of Homeland Security John Kelly admitted that there are an additional “13 or 14 countries, not all of them Muslim countries, not all of them in the Middle East, that have questionable vetting procedures . . . .”19 Once again, the Government merely uses these vetting procedures as a pretext for a law targeted at Muslims. The Executive Order simply does not contain a shred of factual support for a broad sweeping travel ban against natives of the particular identified countries.
To the contrary, recently publicized documents from the Department of Homeland Security contradict the security justification for the Executive Order. In fact, one document is titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States.”20 In analyzing terrorist attacks since 2011, it finds no relationship between those attacks and citizenship:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals . . . died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization . . . . Of the 82 individuals we
18 Id. 19 Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kellytravel-ban-muslim-countries/. 20 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-contradict-travel-bantrump/98374184/.
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 30 of 33
identified, slightly more than half were native-born United States citizens. Of the foreign born individuals, they came from 26 countries, with no one country representing more than 13.5 percent of the foreign-born total.21
The report further finds that “[r]elatively few citizens of the seven countries impacted by
[Executive Order 13,769], compared to neighboring countries, maintain access to the United
States,” and that “[f]ew of the [i]mpacted [c]ountries [h]ave [t]errorist [g]roups that [t]hreaten the
West.”22
Another memorandum from the Department of Homeland Security undercuts the other
purported justification for Executive Order, the need to enhance screening procedures for
individuals traveling from the six targeted countries. The Department of Homeland Security
memorandum questions the link between screening practices in general and preventing terrorism.
It concludes that:
We assess that most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns. We base this assessment on our findings that nearly half of the foreign-born, US-based violent extremists examined in our dataset were less than 16 years old when they entered the country and that the majority of foreign-born individuals resided in the United States for more than 10 years before their indictment or death. A separate DHS study that found that recent foreign-born US violent extremists began radicalizing, on average, 13 years after their entry to the United States further supports our assessment.23
In fact, the Executive Order’s reference to terrorist activities by the lone native of an affected
country—a Somalian refugee convicted on terrorism charges—proves the point. Executive
Order, Section 1(h). Mohamed Osman Mohamud came to the United States as a child refugee at
21 Id. at 1. 22 Id. at 2. 23 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-documentundermines-trump-case-travel-ban.
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 31 of 33
the age of five; however, his arrest on terrorist-related charges occurred when he was 19-years old.24 As the Department of Homeland Security memorandum notes, “screening and vetting
officials” are not likely to be able to account for radicalization that occurs 14 years after entry.
Taken together, these Department of Homeland Security memoranda demonstrate the
pretextual nature of the national security justification for imposing an immigration ban on these
six Muslim-majority nations. The Department of Homeland Security does not find citizenship to
be a likely indicator of future terrorist activity and does not find enhanced screening procedures
to be an effective method of preventing terrorists from entering the country. Thus, an Order that
imposes an immigration ban on the basis of citizenship (as a pretext for religion) in order to
enhance future screening processes flies in the face of the assessment of the very government
agency charged with protecting national security from terrorist threats.
National security experts also concur that the Executive Order is not rationally related to
national security. In Aziz, the court preliminarily enjoined Executive Order 13,679 and, in doing
so, credited a declaration from 10 national security professionals who did not believe that the
Executive Order was related to any security interest. They stated:
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Aziz, 2017 WL 580855, at *3. Following the issuance of the new Executive Order, more than
130 members of American’s foreign policy establishment have issued a letter publically 24 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_bomb_plot.html.
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 32 of 33
denouncing the travel ban as damaging to national security.25 The authors of the letter, who include former Secretaries of State John Kerry and Madeline Albright, conclude:
The revised executive order will jeopardize our relationships with allies and partners on who we rely for vital counterterrorism cooperation and information-sharing. To Muslims—including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision.26 In sum, although passed under the pretext of national security, the Executive Order does not bear any rational relationship to concerns about national security or any other legitimate government interests. Instead, as was clear by the President’s statements prior to his signing the Order, it is motivated by religious animus towards Muslims. Such a law cannot be allowed to stand in our society. As the Moreno Court recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534-45. III. CONCLUSION For the foregoing reasons, the Court should grant the requested injunction against implementation of the Executive Order.
25 Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html. 26 Id.
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Case 1:17-cv-00255-TSC Document 38-2 Filed 03/23/17 Page 33 of 33

DATED: March 23, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) bernabei@bernabeipllc.com Alan R. Kabat (Bar No. 464258) kabat@bernabeipllc.com Christopher Sousa (Bar No. 1018547) sousa@bernabeipllc.com BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

- 26 AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

 
 Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

|

PARS EQUALITY CENTER, et al.,

|

|

|

Plaintiffs,

|

|

v.

|

|

DONALD J. TRUMP, President of the |

United States, et al.,

|

|

Defendants.

|

|

No. 1:17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan Date: March 27, 2017

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF FORMER NATIONAL SECURITY OFFICIALS IN SUPPORT OF PLAINTIFFS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman (D00322) Tahlia Townsend (PHV pending) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com

Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 2 of 9
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF FORMER NATIONAL SECURITY OFFICIALS IN SUPPORT OF THE PLAINTIFFS-
APPELLEES Pursuant to Federal Rules of Appellate Procedure 29(a), the proposed amici, a group of former national security officials identified individually in the attached addendum, hereby submit this Motion for Leave to File the accompanying amicus curiae brief in support of Plaintiffs. Plaintiffs have consented to the relief requested by this motion. Counsel for Defendants did not take a position on the motion. The amici therefore file this motion leave to file the attached amicus brief.
IDENTITY AND INTEREST OF AMICI The proposed amici are former national security, foreign policy, and intelligence officials who have worked on pressing national-security matters in the highest levels of U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the original January 27, 2017, Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Order”), and weeks before the new March 6, 2017, Executive Order bearing the same title (“March 6 Order”). Amici have an interest in ensuring that the United States protects its borders and citizens without abandoning its values or undermining its foreign-policy and national-security interests. Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the
1

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 3 of 9
United States. Amici nevertheless do not believe that risk merits the blanket and counterproductive bans on entry into the United States established by the Orders, either in its original form or as revised.
THE PROPOSED AMICUS BRIEF WILL ASSIST THE COURT The proposed amicus brief would provide helpful analysis in this case because the proposed amici possess significant foreign-policy and national-security experience, relevant to the critical issue of whether the Orders can be justified on national-security or foreign-policy grounds or instead harm our national-security and foreign-policy interests. Amici are in a unique position to weigh in on these issues given their experience working on national-security and foreign-policy matters at high levels of government and their familiarity with national-security concerns, having received intelligence briefing as recently as one week before the January 27 Order went into effect. The proposed amicus brief raises similar concerns and arguments as those expressed by some of the amici in a joint declaration filed in support of the State of Washington’s challenge to the January 27 Order. See Joint Declaration of Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, Susan E. Rice, State of Washington v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017). Most of the amici also filed a brief in support of the petitioners in a challenge to the January 27 Order in the Eastern District of New York, expressing their view that the January 27 Order “cannot be justified on national security or foreign policy grounds” and “would undermine the security of the United States.” See Amicus Brief of Former National Security Officials, Darweesh v. Trump, No. 17-CV-480 (CBA) (E.D.N.Y. Feb. 16, 2017).
2

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 4 of 9

Amici have reached the same conclusion about the March 6 Order, which presents the

same core problems as its predecessor. Accordingly, amici have filed a brief in support of the

plaintiffs in a challenge to the March 6 Order in the District of Maryland. See Brief of Former

National Security Officials as Amici Curiae in Support of Plaintiffs, International Refugee

Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md. Mar. 13, 2017). They seek leave

to present these concerns to this Court as well.

CONCLUSION

For the reasons stated above, amici respectfully request that this Court grant them leave

to file the attached amicus brief.

Dated March 27, 2017

Respectfully Submitted,

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

/s/

_

Jonathan Freiman (D00322)

Tahlia Townsend (PHV pending)

WIGGIN AND DANA LLP

265 Church Street, P.O. Box 1832

New Haven, CT 06508-1832

203-498-4584

jfreiman@wiggin.com

Counsel for Amici Curiae

3

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 5 of 9
ADDENDUM: LIST OF PROPOSED AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. John R. Allen served as Special Presidential Envoy for the Global Coalition to Counter ISIL from 2014 to 2015. Previously, he served as Commander of the International Security Assistance Force and U.S. Forces Afghanistan.
3. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
4. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
5. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
6. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
a

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 6 of 9
10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.
11. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S. Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
13. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
14. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
15. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
16. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
17. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.
18. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.
19. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
b

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 7 of 9
20. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
21. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
22. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
23. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.
24. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.
25. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
26. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
27. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
28. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
29. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
30. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
31. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
c

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 8 of 9
32. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
33. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
34. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
35. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
36. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
37. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
38. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.
39. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department.
40. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
d

Case 1:17-cv-00255-TSC Document 40 Filed 03/27/17 Page 9 of 9
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________/s/_________ Jonathan Freiman (D00322) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com
Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

|

PARS EQUALITY CENTER, et al.,

|

|

|

Plaintiffs,

|

|

v.

|

|

DONALD J. TRUMP, President of the |

United States, et al.,

|

|

Defendants.

|

|

No. 1:17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan Date: March 27, 2017

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman (D00322) Tahlia Townsend (PHV pending) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com

Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 2 of 34
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii INTEREST OF AMICI CURIAE..................................................................................................1 ARGUMENT..................................................................................................................................2 I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL
SECURITY OR FOREIGN POLICY GROUNDS.........................................................3 A. There is no national security or foreign policy basis for suspending entry of aliens
from the six named countries...................................................................................4 B.  suspension of refugee admissions is not justified by national security or
foreign policy concerns..........................................................................................10 II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS...........................12 A. The Order is of unprecedented scope.....................................................................13 B. The Order will do serious damage to our national security and foreign policy
interests. .................................................................................................................13 1. The Order will endanger U.S. troops in the field...........................................13 2. The Order will disrupt essential counterterrorism, foreign policy, and
national security partnerships. .......................................................................14 3. The Order will hinder domestic law enforcement efforts. .............................15 4. The Order will have a devastating humanitarian impact. ..............................16 5. The Order will cause economic damage to American citizens and
residents. ........................................................................................................16 III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC
STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.. .................................................17 CONCLUSION ............................................................................................................................22 APPENDIX: LIST OF AMICI
i

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 3 of 34
TABLE OF AUTHORITIES
Cases Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __, 2017 WL
580855 (E.D. Va. Feb. 13, 2017)................................................................................................ 5 U.S. v. Fordice, 505 U.S. 717 (1992) ..................................................................................... 17, 18 Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).............................. 17 Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497, slip op. (9th
Cir. Feb. 9, 2017) ........................................................................................................................ 5
Statutes 8 U.S.C. § 1182............................................................................................................................. 19 8 U.S.C. § 1187............................................................................................................................... 9
Regulations Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962)...................................................... 20 Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981) ................................................... 13 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992) .................................................... 13 Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015) ...................................................... 13 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) .................................................... 13 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017)........................................................ 3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)......................................................... 3
Other Authorities Adams Nager, et al., The Demographics of Innovation in the United
States, Information Technology & Innovation Foundation (Feb. 2016) .................................. 17 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on
Immigration, CATO at Liberty (Jan. 25, 2017).................................................................... 4, 11 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute
(Sept. 13, 2016)..................................................................................................................... 5, 10
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Alex Nowrasteh, 42 Percent of 'Terrorism-Related' Convictions Aren't for Terrorism, Cato Institute (Mar. 6, 2017) .................................................................................... 5
Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015) ................................................................................................................................... 11
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv. (2016)................................................................................................................. 8
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv. (2006) .......................................................................... 12
Annex of Statistical Information, Country Reports on Terrorism (June 2015) .............................. 6
Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d __, 2017 WL 526497 (9th Cir. Feb. 9, 2017).................................................................................................. 17
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008)................................................................................................... 22
Central Intelligence Agency, 11 September 2001 Hijackers .......................................................... 5
Edward Alden, The Closing of the American Border 104-06 (2008) ........................................... 19
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017)................................................................................................... 19, 20
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017) ........................................................ 5
Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017)......................................... 20
George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015)................................................................................................ 5
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act: Provisions and Funding (2016) ................................................................................................ 18
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017) ........................................................................................................................... 15
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017) ................................................... 8, 19
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017) ............................................ 19
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Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017) .................................................................................................................. 14
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016) .............................................................................. 15
Martha Nussbaum et al., White House Creates Confusion About Future of Trump's Travel Ban, Politico (Feb. 21, 2017) ...................................................................... 3, 21
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001) ............................................................................................................................ 19
Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017) ...................................................... 19, 20
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017)...................................................................... 15
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007) .............................................................................. 5
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012) ................................................................................................................................ 15
Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017).......................................................................................... 5
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017) ....................................................... 17
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ......................... 5
Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017).................................................................. 14
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ............................... 8
Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).......................................................................... 4
Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017) ............................................................................................................... 14
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs) ............................................... 8
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The Security of U.S. Visa Programs: Hearing Before the S. Comm on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña) ................................................................................................. 7
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015) .................................... 9 Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A Staff Report of the
National Commission on Terrorist Attacks Upon the United States (2004)............................. 19 U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for
the Visa Waiver Program (Feb. 18, 2016).................................................................................. 9 U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services
(Dec. 3, 2015) ........................................................................................................................... 11 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel
and Tourism Expenditures (Dec. 15, 2016) .............................................................................. 16 U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions
for Fiscal Year 2016 (2016)...................................................................................................... 14 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian
Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016) .................................................. 12 U.S. Dep’t of State, The Refugee Processing and Screening System ............................................. 4 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs .................................................... 11 U.S. Dep’t of State, Visa Waiver Program..................................................................................... 9 U.N. High Commissioner for Refugees, Resettlement ................................................................. 12 Urban Justice Center, International Refugee Assistance Project, IRAP Stands With
Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017) .......................... 14 William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at
Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009) ...................................................... 18
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INTEREST OF AMICI CURIAE Amici curiae are former national security, foreign policy and intelligence officials who have worked on pressing national security matters in the U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the original January 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Order”), and weeks before the new March 6, 2017 Executive Order bearing the same title (“March 6 Order”). On February 16, 2017, amici filed an amicus brief in Darweesh v. Trump in the U.S. District Court for the Eastern District of New York, expressing our view that the January 27 Order “cannot be justified on national security or foreign policy grounds” and “would undermine the security of the United States.” Amici have reached the same conclusion about the March 6 Order, which presents and preserves the same core problems as its predecessor. Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. Amici nevertheless do not believe that risk merits the blanket and counterproductive bans on entry into the United States established by the Orders, either in its original form or as revised.
ARGUMENT The March 6 Order serves no persuasive national security or foreign policy purpose. Left in place, the Order will do long-term damage to our national security and foreign policy interests. It will endanger troops in the field, and disrupt key counterterrorism and
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national security partnerships. It will aid the propaganda effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its recruitment message. By feeding the narrative that the United States is at war with Islam, the Order will impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism. And it will have a damaging humanitarian and economic impact.
Indeed, the March 6 Order preserves the same problematic features of the January 27 Order that were outlined in the original brief filed by many of the same amici in Darweesh. The March 6 Order continues to impose a blanket ban on entry from the listed countries that cannot be justified on national security or foreign policy grounds. The March 6 Order continues to depart from the particularized review based on credible intelligence-based threats that has been a core premise of our border security efforts across decades of administrations led by Presidents from both parties. And rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” did not disguise the January 27 Order’s discriminatory intent, or make it necessary, effective or faithful to America’s Constitution, laws, and values. The few changes that were introduced in the March 6 Order do not cure this discriminatory intent, or suddenly provide a persuasive basis for the Order on national security or foreign policy grounds.
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I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL SECURITY OR FOREIGN POLICY GROUNDS. On January 27, 2017, President Donald Trump signed an executive order imposing a
number of suspensions on the entry of non-citizens into the United States.1 The President’s stated goals for the Order were to “protect[] the nation from foreign terrorist entry into the United States” and to “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”2 On March 6, 2017, following weeks of litigation, the Administration issued a revised version of the Executive Order.3 This March 6 Order revokes the January 27, 2017 Order and makes several changes to that Order, including exempting green card holders and valid visa holders from the immigration restrictions and removing Iraq from the list of excluded countries. However, the Order continues to suspend travel from the listed countries for 90 days from its effective date. The Order continues to suspend refugee admissions for 120 days.4 And in the words of a senior advisor to President Trump, the Order still aims to guarantee the “same basic policy outcome.”5
As former U.S. officials responsible for the national security and foreign relations of the United States in multiple presidential administrations, amici have devoted their careers to the safety and welfare of the American people. Yet the March Order continues to bear no rational relation to the President’s stated aim of protecting the nation from foreign terrorism. It
1 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 2 Id. 3 Exec. Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017). 4 A redlined comparison of the two Orders can be found at: http://aclum.org/wpcontent/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-BanEO.pdf. 5 Matthew Nussbaum et al., White House Creates Confusion About Future of Trump’s Travel Ban, Politico (Feb. 21, 2017).
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targets countries whose nationals have committed no lethal terrorist attacks on U.S. soil in the last forty years. It suspends the entry of refugees—the vast majority of whom are vulnerable women and children6—when in the modern era of screening, no refugee has ever killed a U.S. citizen in a terrorist attack in the United States.7
Even now, weeks after the signing of the original January 27 Order, Respondents have supplied no persuasive information that would justify such a categorical ban, even in this revised form. They make no showing that our immigration system has suffered from inadequate consideration of national origin or religious affiliation, and identify no flaw in the current individualized vetting procedures—developed by national security officials across several presidential administrations in response to particular threats identified by U.S. intelligence.
A. There is no national security or foreign policy basis for suspending entry of aliens from the six named countries.
No legitimate national security purpose is served by the Order’s blanket ban on entry into the United States of nationals of Syria, Sudan, Iran, Somalia, Libya, and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years.8 The January Order opened with a reference to the September 11, 2001 attacks, and White House officials have since pointed to those attacks as justification for its restrictions.9 But none of the September 11 hijackers were citizens of the
6 U.S. Dep’t of State, The Refugee Processing and Screening System, https://www.state.gov/documents/organization/266671.pdf. 7 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh Jan. 2017”] 8 Id. 9 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).
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six targeted countries.10 In fact, multiple studies show that the overwhelming majority of
individuals who were charged with—or who died in the course of committing—terrorist-related
crimes inside the United States since September 11 have been U.S. citizens or legal permanent
residents.11
The U.S. government provided no evidence to the contrary in its initial January 27
Order.12 The March 6 Order now offers the assertion that “[s]ince 2001, hundreds of persons
born abroad have been convicted of terrorism-related crimes in the United States.” The Order
does not actually cite any support for this statement. But a similar set of data—relied on by
White House officials in recent weeks to justify the initial January 27 Order—has been widely
criticized for its definition of terrorism-related offenses, among other issues.13
Second, Respondents have identified no persuasive basis for believing that a heightened
or particularized future threat has suddenly arisen from the six named countries. The January 27
Order was unable to muster any such explanation at all. The March 6 Order offers a series of
10 Central Intelligence Agency, 11 September 2001 Hijackers, https://www.cia.gov/newsinformation/speeches-testimony/2002/DCI_18_June _testimony_new.pdf. 11 See Peter Bergen et al., Terrorism in America After 9/11, New America Foundation, www.newamerica.org/in-depth/terrorism-in-america/; George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017); Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016) [hereinafter “Nowarsteh Sept. 2016”]. 12 See Washington v. Trump, No. 17-35105, __ F.3d __ at 26, 2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __ at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). 13 See, e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007); Nowaresteh Jan. 2017, supra note 7; Alex Nowrasteh, 42 Percent of ‘Terrorism-Related’ Convictions Aren’t for Terrorism, Cato Institute (Mar. 6, 2017).
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excerpts from the 2015 Department of State Country Reports on Terrorism and elsewhere, describing how these nations are home to violent extremist groups, and do not cooperate in U.S. counterterrorism efforts. However, the Country Reports only once again confirm the imprecision of the country bans in the Order: They point out, for example, that more than 55 percent of all terrorist attacks in 2015 took place in only five countries (Iraq, Afghanistan, Pakistan, India and Nigeria), none of which are subject to the travel ban.14 At any rate, the Order does not plausibly make the case that the threat has recently increased from these areas of the globe such that a sudden country-based ban is needed, or that a suspension of travel will lead to improved counterterrorism efforts or information sharing with these countries. And as amici explain later, there is actually ample reason to believe the Order will compromise our security programs.
The only other evidence cited by the Order for this proposition is a pair of anecdotal cases in which individuals who were originally refugees from the listed countries were later sentenced for terrorism-related crimes. But, one of those cases involved terror activities undertaken before the individual came to the United States, not acts on U.S. soil, and the current procedures already have been fully reviewed and revised to address the issues raised by that entry. The other individual was unable to execute on his plans at all, and in any event was admitted as a small child, and so it is difficult to see how a suspension of travel to improve the vetting process would have affected his entry, since he was radicalized here in the United States. And of course, the mere mention of these two cases hardly refutes the multiple, careful analyses cited earlier showing that they are very much the exception rather than the rule.15
14 Annex of Statistical Information, Country Reports on Terrorism 2015 (June 2016). 15 See supra note 11.
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A number of amici were current on active intelligence concerning all credible terrorist threat streams directed against the United States as of January 20, 2017. They know of no specific threat—just weeks later—that would have justified the January 27 ban on travel from these six countries. Amici are unaware of any new national security basis for a ban on six of those countries that might suddenly have surfaced in the weeks between that Order and the more recent March 6 ban.
Third, Respondents have identified no flaw in existing procedures that would justify the bans in the Order. Since the September 11, 2001 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting system is applied to travelers not once, but multiple times, and it is continually re-evaluated to ensure its effectiveness. Successive administrations have strengthened the vetting process through robust information-sharing and data integration. This approach allows the government to identify potential terrorists without resorting to blanket bans.16
Respondents offer no reason to move abruptly to a national origin-based ban, when the United States already has such a tested system of individualized vetting, developed and implemented by national security professionals across the government. In fact, information continues to surface that confirms that country-based bans are the wrong approach. For instance, since the initial Order was issued in January, a document surfaced from within the Department of Homeland Security itself, prepared in response to a request from the new Administration. The
16 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña), https://www.hsgac.senate.gov/hearings/the-security-of-us-visa-programs.
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document confirms that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”17
Finally, the Order cannot be defended as a mere continuation of recent U.S. counterterrorism policy. Because threat streams constantly evolve, amici sought continually to improve vetting when serving as national security officials. That effort included reviews in 2011 and 2015-16, when the U.S. government acted in response to particular threats identified by intelligence sources. In 2011, after receiving derogatory information regarding two Iraqi nationals who had entered the United States as refugees, the U.S. government undertook an extensive interagency review of its vetting system. The flow of refugees from Iraq slowed during the pendency of the review,18 and upon completion of the review, the U.S. government implemented new, stronger security procedures in areas of identified vulnerability.19
Likewise, in late 2015 and early 2016, in response to the emerging threat posed by ISIL, the U.S. government took several steps to strengthen the Visa Waiver Program, which allows citizens from thirty-eight approved countries to travel to the United States without first obtaining a visa. President Obama introduced a series of new measures to enhance security screenings and
17 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States [hereinafter “Citizenship Unlikely”], available at https://assets.documentcloud.org/documents/3474730/DHSintelligence-document-on-President-Donald.pdf. 18 Refugee Processing Center, Interactive Reporting, http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017). 19 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs), https://www.hsgac.senate.gov/hearings/ten-years-after-9/11preventing-terrorist-travel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv., 14 (2016).
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traveler risk assessments in the program and bolster our relationship with partner countries.20 Around the same time, President Obama signed into law a statute that removed from the Visa Waiver Program those nationals of existing Visa Waiver Program countries who: (1) had been present in Iraq, Syria, Iran or Sudan after March 1, 2011, or (2) were dual nationals of one of those four countries.21 Several months later, the Secretary of Homeland Security—acting under the new statute and in consultation with the Director of National Intelligence and the Secretary of State—expanded the list of four countries to include Yemen, Libya and Somalia.22
Contrary to Respondents’ claims, these previous reforms provide no justification for a blanket, group-based ban on the entry of nationals from these six countries. The enhancement of security in the refugee system allowed for more searching, individualized vetting of travelers, the opposite of the categorical ban in this Order. Similarly, the reforms to the Visa Waiver Program did not automatically bar anyone—including nationals of any country—from travel to the United States. The affected individuals were simply required to obtain individually-vetted visas before entering the United States, just as nationals from the more than 150 other nations not currently part of the Visa Waiver Programs must do.
To keep our country safe from terrorist threats, the U.S. government must gather all credible evidence about growing threat streams—including through the best available
20 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/30/fact-sheet-visa-waiverprogram-enhancements; U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram. 21 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. 22 The exemptions for Yemen, Libya and Somalia only applied to those who had traveled to or been present in one of those countries, not dual nationals. U.S. Dep’t of Homeland Security, supra note 20.
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intelligence—to thwart those threats before they ripen. Through the years, national securitybased immigration restrictions have: (1) responded to specific, credible threats based on individualized information, (2) rested on the best available intelligence, and (3) been subject to thorough interagency legal and policy review. The present Order does not rest on such tailored grounds, but rather on (1) generalized bans, (2) that are not supported by any new intelligence that Respondents have cited or of which amici are aware, and (3) were not vetted through careful interagency legal and policy review.
B. The suspension of refugee admissions is not justified by national security or foreign policy concerns.
The March 6 Order’s 120-day ban on refugee admissions serves no national security or foreign policy purpose. Amici know of no factual basis for Respondents’ claim that refugees pose a particular security threat to the United States that would justify the Order’s categorical bans.
From 1975 to the end of 2015, over three million refugees have been admitted to the United States. According to a recent study, only three have killed people in terrorist attacks on U.S. soil.23 All three were Cuban refugees, who murdered three people in two attacks in the 1970s. Critically, these refugees were admitted and carried out their crimes before the creation of the modern refugee vetting system in 1980.24 No refugee has killed an American in a terrorist attack in the United States since that system was put in place.25 According to the study, over that
23 Nowrasteh Sept. 2016, supra note 11. 24 Id. 25 Id.
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same period, only twenty refugees were convicted of any terrorism-related crimes on U.S. soil at all.26
In fact, refugees already receive the most thorough vetting of any travelers to the United States.27 Refugee candidates are vetted recurrently throughout the resettlement process, as “pending applications continue to be checked against terrorist databases, to ensure new, relevant terrorism information has not come to light.”28 By the time refugees referred by the United Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the United States, they have been reviewed not only by UNHCR but also by the National Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State and the U.S. intelligence community more broadly.29
The refugee vetting process is also reviewed and strengthened on an ongoing basis in response to particular threats.30 For Syrian applicants, the Department of Homeland Security recently added a layer of enhanced review that involves collaboration between the Refugee, Asylum, and International Operations Directorate and the Fraud Detection and National Security
26 Id. (“The chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year”); see also Nowrasteh Jan. 2017, supra note 7. 27 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs, https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm. 28 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/11/20/ infographic-screening-process-refugee-entry-united-states. 29 U.S. Dep’t of State, supra note 28. 30 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015), https://www.uscis.gov/sites/default/files/ USCIS/Refugee%2C%20Asylum%2C%20and%20Int%27l%20Ops/Refugee_Security_Screenin g_Fact_Sheet.pdf.
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Directorate. Among other measures, this review provided additional, intelligence-driven support to refugee adjudicators that U.S. officials could then use to more precisely question refugees during their security interviews.31 Respondents allege no specific information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most important step, additional considerations make the U.S. refugee system difficult for terrorists to exploit. Under current vetting procedures, refugees often wait eighteen to twenty-four months to be cleared for entry into the United States.32 Further, of all refugees determined by the UNHCR to be eligible for resettlement, less than one percent were resettled in any country at all in 2015,33 meaning that a would-be terrorist posing as a refugee has very little chance of being resettled anywhere, let alone the United States. Finally, the UNHCR resettlement program places refugees in dozens of countries, and refugees do not decide where they are resettled or which country accepts them, meaning that the odds of any individual refugee being settled into the United States in particular are exceedingly low. II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS.  ' ''.( %+'' , ""%"() $'#)%)$) %$"(*' )-$%' $ &%" - $)'()(%)$ )))(
31 U.S. Dep't of State, supra note 6; Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv., 4-5 (2016). 32 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016), https://www.state.gov/j/prm/releases/factsheets/2016/254649.htm. 33 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html.
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A. The Order is of unprecedented scope. !$%,%$%(,' '( $)( $+%! *)%' )- *$')## ') %$$ ) %$" )- 
) to suspend admission of such a sweeping class of people. Even after the September 11 attacks, the U.S. government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin or religious affiliation. Across the decades, executive orders under the Immigration and Nationality Act usually have targeted specific government officials,34 undocumented immigrants35 or individuals whose personalized screenings indicated that they posed a national security risk.36 And above all, no example in the modern era even approaches the sheer breadth of this Order, which with one stroke of the pen bans more than 180 million people in six separate countries from traveling to the United States based solely on their national origin. B. The Order will do serious damage to our national security and foreign
policy interests. The Order will harm the interests of the United States in a number of respects.
1. The Order will endanger U.S. troops in the field. The Order will affect interpreters and others who have assisted our troops at great risk to their own lives. While Iraq has been removed from the list of banned countries, the Order halts the entire U.S. Refugee Assistance Program for 120 days for all countries. This pause will affect tens of thousands of individuals who assisted the United States and who are waiting for
34 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996). 35 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981). 36 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).
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Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 20 of 34
admission under the already backlogged “Priority 2” program.3738 The removal of Iraq from the Order, therefore, does not eliminate the effects its citizens – our key partners – will feel. By discouraging future assistance and cooperation from these and other affected military allies and partners, the Order will jeopardize the safety and effectiveness of our troops.
2. The Order will disrupt essential counterterrorism, foreign policy, and national security partnerships.
The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our country’s efforts to address the threat posed by terrorist groups such as ISIL. The Order has already sparked intense international criticism and alienated U.S. allies and partners. Countries in the Middle East expressed disapproval and even threatened and engaged in reciprocity in response to the January 27 Order, jeopardizing years of diplomatic outreach.39 We can certainly anticipate a similar reaction to the current order, if it is permitted to go into effect.
The Order will also endanger U.S. intelligence sources in the field. For up-to-date information, our intelligence officers often rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep
37 The “Priority 2” program provides an alternative to the now closed Special Immigrant Visa program. 38 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center, International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017). 39 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017); The Guardian, UN says Trump’s revised travel ban will worsen plight of refugees (Mar. 7, 2017); Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017).
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Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 21 of 34
Americans safe—and whom our officers had promised to protect.40 Finally, by suspending visas, this Order halts the collection of important intelligence that occurs during visa screening processes, information that can be used to recruit agents and identify regional trends of instability.41
3. The Order will hinder domestic law enforcement efforts. Domestic law enforcement relies heavily on partnerships with American Muslim communities to fight homegrown terrorism.42 One report found that in the years since September 11, 2001, Muslim communities have helped U.S. security officials prevent nearly two out of every five Al-Qaeda plots threatening the United States.43 By alienating MuslimAmerican communities in the United States, the Order will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando. The Order’s disparate impact on Muslim travelers and immigrants also feeds ISIL’s propaganda narrative and sends the wrong message to the Muslim community at home and abroad: that the U.S. government is at war with them based on their religion. Less than a day after President Trump signed the January 27 Order, jihadist groups began citing its contents in recruiting messages online.44 The revised Order may even endanger Christian communities
40 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017). 41 This process is particularly important in countries like Iran and Libya, where internal conflict or lack of diplomatic ties limit on-the-ground intelligence collection. 42 Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016). 43 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post-911-Terrorism-Data.pdf. 44 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017).
15

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 22 of 34
overseas, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war.
4. The Order will have a devastating humanitarian impact. The Order will have a devastating humanitarian impact. First and foremost, the Order will disrupt the travel of men, women and children who have been victimized by actual terrorists. Next, tens of thousands of other travelers today face deep uncertainty about whether they may travel to or from the United States for reasons including medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows the Secretaries of State and Homeland Security to admit travelers from targeted countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. Finally, closing our borders to refugees who otherwise would have had the opportunity to resettle in the United States will keep them in dangerous conditions and shift the burden to overstretched allies who are currently accepting far more than their fair share of refugees.
5. The Order will cause economic damage to American citizens and residents.
Finally, the Order will affect many foreign travelers who annually inject hundreds of billions of dollars into the U.S. economy, supporting well over a million U.S. jobs.45 Since the initial Order was issued, dozens of affected companies have noted the damaging impact the travel ban can be expected to have on strategic economic sectors including defense, technology,
45 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/press-releases/2016/department-ofcommerce-releases-october-travel-tourism-expenditures-121516.asp.
16

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 23 of 34
and medicine.46 About a third of U.S. innovators were born outside the United States, and their
scientific and technological innovations have contributed to making our nation and the world safe.47 The harm caused by the ban to the economic dynamism of our country will carry long-
term negative and serious consequences for our national security.
III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.
The Supreme Court has observed that “[d]epartures from the normal procedural sequence
. . . might afford evidence that improper purposes are playing a role” in government action. Vill.
Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977). What is more, this
evidence cannot be cured by a later-in-time order that preserves the essential features of the first.
See U.S. v. Fordice, 505 U.S. 717 (1992) (holding that Mississippi’s re-classification of its state
colleges and universities in ways that were facially neutral but perpetuated racial segregation
continued to violate Brown v. Board of Education); Vill. Of Arlington Heights, 429 U.S. at 267
(noting that the “specific sequence of events leading up the challenged decision also may shed
some light on the decisionmaker’s purposes”).
In this situation, the process that produced the January 27 Order departed from the
traditional national security policy-making process, with little to no consultation or scrutiny
46 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497 (9th Cir. Feb. 9, 2017). 47 Adams Nager, et al., The Demographics of Innovation in the United States, Information Technology & Innovation Foundation 29 (Feb. 2016), http://www2.itif.org/2016-demographicsof-innovation.pdf. Iran’s universities, for example, have produced an “inordinate amount of intellectual talent in computer science and cybersecurity.” These scientists are drawn to universities in the United States, where their research is then used by entities such as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trump-immigration-ban-cybersecurity-iran-protests/.
17

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across the Departments of State, Justice, Homeland Security or the Intelligence Community. And while further thought no doubt went into the March 6 Order, on its face it seems clear that that order was carefully structured to mimic the old ban as closely as possible. As Justice Thomas explained in U.S. v. Fordice, “if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear – clear enough to presume conclusively – that the State has failed to disprove discriminatory intent.” Fordice, 505 U.S. at 747 Thomas, J., concurring).
In every recent administration, Presidents considering a change to immigration policy have followed an interagency review process that allows security professionals to ensure that all relevant uncertainties are addressed by policy and legal experts, appropriate preparations are made for implementation, and any potential risks are effectively mitigated. Before recommendations are submitted to the President, the National Security Council oversees a legal and policy process that typically includes the following important components: a review by the career professionals in institutions of the U.S. government charged with implementing an order; a review by the career lawyers in those institutions to ensure legality and consistency in interpretation; and a senior policy review across all relevant agencies, including Deputies and Principals at the cabinet level.48
48 This is no less true of executive orders issued at the start of a new presidency. See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act: Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009).
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This practice of interagency deliberation has been followed even—and especially—in
times of national emergency in order to set temporary exclusions or establish criteria for
admission to the United States. In the immediate aftermath of the September 11, 2001 attacks,
when the Bush Administration considered whether the President should invoke 8 U.S.C. §
1182(f) to bar certain immigrants or take other actions to secure the border, officials engaged in consultations across the national security agencies to arrive at a decision.49 The reexamination of the vetting system in 201150 and the security reforms to the Visa Waiver Program in 2015-1651
reflect similar interagency consultation.
The process that produced the January 27 Order departed sharply from this standard
practice. We know of no process underway before January 20, 2017 to change current
immigration vetting procedures. According to extensive reporting, Respondents followed no such process in producing the January 27 Order.52 Nor, apparently, did the White House consult
officials from any of the seven agencies tasked with enforcing immigration laws, much less the
congressional committees and subcommittees that oversee them. There is every indication that
49 Edward Alden, The Closing of the American Border 104-06 (2008); Thomas R. Eldridge, et al., 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks Upon the United States 151-54 (2004); Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001). 50 Jon Finer, supra note 19. 51 See supra notes 21-23 and surrounding text. 52 The Secretary of Homeland Security reportedly received his first full briefing as the President signed the January 27 Order. Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017). The Secretary of Defense was neither consulted during the drafting of the order nor given an opportunity to provide input. Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017). Most State Department officials reportedly first heard of the Order through the media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017).
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that Order received little, if any, advance scrutiny by the Departments of State, Justice, Homeland Security or the intelligence community.53
As telling, the January 27 Order was apparently issued without interagency legal process. In recent history, administrations of both political parties have followed a protocol of submitting proposed Orders to the Attorney General, the Justice Department’s Office of Legal Counsel (“OLC”) and all other agency legal offices involved with enforcing the law.54 Legal review by multiple agencies helps to identify potentially unforeseen legal implications of an order, determines the lawfulness of the proposed action, and analyzes whether the proposed language has established legal meaning that can be interpreted consistently with other laws and regulations. Here, the White House reportedly never asked the Department of Homeland Security for legal review in advance of the Order being promulgated, so “[t]he Department . . . was left making a legal analysis on the order after [President] Trump signed it.”55 Unsurprisingly, the January 27 Order contained numerous ambiguities and inconsistencies that immediately caused confusion, forcing implementing agencies to improvise and the White House to reverse itself at least once.56
Although the White House apparently brought more agencies into the fold in the days leading up to the March 6 Order, whatever process took place after January 27, 2017 plainly was meant to preserve the same structure, substance and purpose of the original flawed executive
53 Customs and border officials reported that their superiors could not provide clear guidance about the new policy. Shear & Nixon, supra note 53; see also Allen & O’Brien, supra note 53 (quoting CBP chief of passenger operations at John F. Kennedy International Airport declaring, “[w]e are as much in the dark as everybody else.”). 54 See, e.g., Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962). 55 Perez et al., supra note 53; Shear & Nixon, supra note 53. 56 Allen & O’Brien, supra note 53; Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017).
20

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 27 of 34
order. Indeed, White House political advisor Stephen Miller admitted that the March 6 Order would reflect “mostly minor technical differences,” and achieve “the same basic policy outcome for the country,” statements that were echoed by other senior officials.57
Ultimately, there continues to be scant evidence that the country-based approach that is maintained in this Order emerged from the considered perspective of national security experts from across multiple affected agencies. In fact, a document that recently surfaced from the Department of Homeland Security shows just the opposite. When DHS officials were asked by the new administration to identify the terrorist threat from the listed countries, they reached two critical conclusions: that citizenship is likely an unreliable indicator of terrorist threat, and that few of the listed countries are home to terrorist groups that threaten the west.58 To this moment, the Administration has yet to explain how the country-based bans established here work effectively to forestall terrorist threats or why there are not more narrowly tailored measures available to address our country's national security concerns.
57 Matthew Nussbaum et al., supra note 5. 58 Citizenship Unlikely, supra note 18.
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CONCLUSION Ours is a nation of immigrants, committed to the faith that we are all equal under the law and that we abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, amici sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, a system that applies no religious tests and that measures individuals by their merits, not by stereotypes of countries or groups. Unjustified blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that amici took oaths to protect. Although our nation was founded by immigrants fleeing religious persecution, the Order discriminates based on religion. Although our Constitution enshrines the principle that all are equal under the law, the Order discriminates on the basis of national origin. And although the United States accepted over four million refugees in the decades after World War II,59 the Order willfully ignores the greatest refugee crisis since that time. Allowing the March 6 Order to take effect would wreak havoc on our nation’s security and deeply held American values and would threaten innocent lives. Blocking the Order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still subjecting travelers to all the rigorous legal vetting processes that are currently in place.
59 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).
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Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 29 of 34

For all of these reasons, amici support the Plaintiffs in seeking to block the March 6

Order from going into effect.

Respectfully Submitted,

________/s/_________

Harold Hongju Koh

Jonathan Freiman (D00322)

Hope Metcalf

Tahlia Townsend (PHV pending)

RULE OF LAW CLINIC

WIGGIN AND DANA LLP

Yale Law School

265 Church Street

127 Wall Street, P.O. Box 208215

P.O. Box 1832

New Haven, CT 06520-8215

New Haven, CT 06508-1832

203-432-4932

203-498-4584

jfreiman@wiggin.com

Counsel for Amici Curiae

 We are grateful to Phil Spector, Danieli Evans, Clare Ryan, and the student members of the Yale Law School Rule of Law Clinic—Benjamin Alter, Colleen Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad, Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg, Tianyi Xin, and Nathaniel Zelinsky—for their contributions to this submission. Yale Law School’s Rule of Law Clinic is organized separately from the school’s Jerome N. Frank Legal Services Organization (“LSO”), a counsel for petitioners in a separate challenge to the original executive order. No counsel authored this brief in whole or in part; no party or party’s counsel contributed money intended to fund preparing or submitting this brief; and no person, other than amici, their members, and counsel, contributed money that was intended to fund preparing or submitting this brief. The views expressed by Yale Law School’s legal clinics are not necessarily those of the Yale Law School.
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APPENDIX: LIST OF AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. John R. Allen served as Special Presidential Envoy for the Global Coalition to Counter ISIL from 2014 to 2015. Previously, he served as Commander of the International Security Assistance Force and U.S. Forces Afghanistan.
3. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
4. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
5. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
6. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.
11. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S.
a

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 31 of 34
Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
13. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
14. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
15. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
16. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
17. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.
18. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.
19. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
20. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
21. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
22. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
23. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.
24. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.
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Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 32 of 34
25. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
26. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
27. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
28. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
29. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
30. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
31. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
32. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
33. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
34. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
35. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
36. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
37. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
c

Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 33 of 34 38. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011. 39. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department 40. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
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Case 1:17-cv-00255-TSC Document 40-1 Filed 03/27/17 Page 34 of 34
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________/s/_________ Jonathan Freiman (D00322) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com
Counsel for Amici Curiae

 
 Case 1:17-cv-00255-TSC Document 41 Filed 03/28/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

____________________________________)

MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES OF NATIONAL URBAN LEAGUE AND
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE FOR LEAVE TO JOIN AMICI CURIAE BRIEF

The National Urban League and the National Association for the Advancement of

Colored People, through undersigned counsel, hereby move, pursuant to Rule 7(b) of the Federal

Rules of Civil Procedure, for leave to join the amici curiae brief recently filed by national and

regional Civil Rights Organizations, on the side of the Plaintiff.

In support of this Motion, the National Urban League and the National Association for

the Advancement of Colored People state as follows:

1. The National Association for the Advancement of Colored People (NAACP) is

the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909,

the mission of the NAACP has been to ensure the political, educational, social, and economic

equality of all persons and to eliminate race based discrimination. The NAACP has fought in the

courts for decades to protect the guarantee of equal protection under law. To advance its

mission, the NAACP has represented parties in landmark civil rights cases, perhaps most

famously in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which outlawed

34246425.1

Case 1:17-cv-00255-TSC Document 41 Filed 03/28/17 Page 2 of 4
segregation in public schools. The NAACP also has filed numerous amicus briefs over its decades of existence in cases that significantly impact minority groups, including Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (upholding affirmative action and allowing race to be a factor in college admissions); Furman v. Georgia, 408 U.S. 238 (1972) (striking down death penalty schemes in the United States until the case was overturned in 1976); Loving v. Virginia, 388 U.S. 1 (1967) (invalidating laws prohibiting interracial marriage); and Henderson v. United States, 339 U.S. 816 (1941) (abolishing racial segregation in railroad dining cars). Recent examples include amicus briefs in Fisher v. University of Texas at Austin, 579 U.S. __, 136 S. Ct. 2198 (2016) (concerning affirmative action in college admissions); Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584 (2015) (ruling that the fundamental right to marry is guaranteed to same-sex couples); Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding race-based affirmative action in law school admissions); and Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating more rigid, point-based affirmative action in admissions as akin to a quota system). Ensuring that government abides by the hard-won guarantee of equal protection for all – including those who practice a particular faith – is a central purpose of the NAACP and its more than 2000 units across the country.
2. The National Urban League is a civil rights organization dedicated to empowerment of African Americans to achieve economic parity and racial equality. Founded in 1910 and headquartered in New York City, the League improves the lives of more than two million people annually across the nation through direct service programs, including education, employment training and placement, housing and health. The Urban League seeks to ensure our civil rights by actively working to eradicate all barriers to equal participation in all aspects of American society, whether political, economic, social, educational or cultural. As the League’s
2

Case 1:17-cv-00255-TSC Document 41 Filed 03/28/17 Page 3 of 4
mission aligns with the Amici’s seeking of promotion of civil liberties and elimination of discrimination throughout the country, Amicus National Urban League joins this motion in support of the preliminary injunction.
3. This case, and several other related cases that seek to enjoin President Trump’s March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” are important, and the participation of Civil Rights Organizations is desirable. The Amici are national civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form.
11. A court may grant leave to appear as amicus curiae if the information offered is timely and useful. Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). In Ellsworth, the court granted a motion to file an amicus curiae brief because the movants “have a special interest in [the] litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution” of those issues. Id. The NUL and the NAACP respectfully submit that this standard is met here.
12. Amici’s proposed brief presents two arguments. First, amici submit that the public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, as the Order improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order’s focus on a religious minority demands strict scrutiny by this Court of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, even if this court were to review the Executive Order under a “rational basis” test, amici write separately to
3

Case 1:17-cv-00255-TSC Document 41 Filed 03/28/17 Page 4 of 4

argue that the Order would still violate equal protection. Local Civil Rule 7(m) Statement
Undersigned counsel, by email, determined that Jon Greenbaum, counsel for Plaintiff, consented to the filing of this motion. Undersigned counsel sent an email to Daniel S. Schwei, counsel for the Defendant, who indicated that the Government took no position on our request to the filing of this motion.
Respectfully submitted,

DATED: March 28, 2017

/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) Alan R. Kabat (Bar No. 464258) Christopher Sousa (Bar No. 1018547) Bernabei & Kabat, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Counsel for Amici Curiae

4

Case 1:17-cv-00255-TSC Document 41-1 Filed 03/28/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

ORDER

Upon consideration of the Motion of the National Urban League and the National

Association for the Advancement of Colored People, filed on March 28, 2017, for leave to join

the amici curiae brief filed by the Civil Rights Organizations, any response, and the entire record

of this case, and having determined that good cause has been shown for granting the Motion, it is

hereby,

ORDERED that the Motion is granted; and it is

FURTHER ORDERED THAT the National Urban League and the National Association

for the Advancement of Colored People are granted leave to join the Civil Rights Organization’s

amici curiae brief in the above-captioned case;

.

So ordered this _____ day of _____________, 2017.

___________________________ Hon. Tanya S. Chutkan U.S. District Court Judge

 
 Case 1:17-cv-00255-TSC Document 42 Filed 03/28/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC Electronically Filed

MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES FOR THE FOUNDATION FOR THE CHILDREN OF IRAN, CHILDREN OF PERSIA
AND IRANIAN ALLIANCES ACROSS BORDERS FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Dated: March 28, 2017

Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

Case 1:17-cv-00255-TSC Document 42 Filed 03/28/17 Page 2 of 5
Pursuant to Rule 7 of the Federal Rules of Civil Procedure and Local Rule 7(o), The Foundation for the Children of Iran (FCI), Children of Persia (COP) and Iranian Alliances Across Borders (IAAB) respectfully seek leave to file the attached brief as amici curiae in support of Plaintiffs. Amici curiae have obtained the consent of the Plaintiffs to file the attached brief. The government takes no position regarding whether amici curiae file the attached brief.
In support of this motion, FCI, COP, and IAAB state as follows: Amicus FCI is a 501(c)(3) organization that helps arrange health-care services, including life-saving treatments, for Iranian children and children of Iranian origin. Based in Bloomington, Minnesota, FCI relies on a global network of volunteers to serve the needs of as many children as possible, regardless of race, creed, religious belief, or political affiliation. Essential to FCI’s mission is the ability of children residing in Iran and their parents to travel to the United States on non-immigrant visas over the course of several years to obtain the critical treatment that they need. Amicus COP is a 501(c)(3) charitable organization based in Maryland that supports disadvantaged Iranian children and their families in Iran and around the world. COP has helped rebuild earthquake-damaged schools in Iran, delivered equipment to Iranian hospitals, and provided food, clothing and medical care to disadvantaged children in Iran. COP also provides scholarships to college students of Iranian descent in the United States. COP’s charitable work in Iran frequently requires its members to travel between Iran and the United States. Amicus IAAB is a 501(c)(3) organization based in New York City that seeks to strengthen America’s Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across borders and multiple communities. IAAB includes over a thousand members of Iranian descent or nationality and
2

Case 1:17-cv-00255-TSC Document 42 Filed 03/28/17 Page 3 of 5
works by empowering members of the Iranian diaspora community to deepen connections with their new communities while continuing to maintain their roots. These activities rely in large part on the ability of IAAB members to travel between the United States and Iran, including on non-immigrant student visas.
This court has “broad discretion” to allow non-parties to participate as amicus curiae. Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). The Ellsworth Court found it appropriate for the non-party movants in that case to participate as amicus curiae because they had “a special interest in th[e] litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution of this case.” Id. The amici curiae meet that standard here. Amici present unique perspectives that are important to the Court’s consideration. Amici have a strong interest in seeing a preliminary injunction issued; amici, as part of their respective missions, regularly work with non-U.S. citizens traveling between Iran and the United States and are familiar with the rigorous screening procedures Iranians have been subjected to long before the issuance of the Executive Order at the heart of this case, Executive Order No. 13780, which supersedes a prior version of the same policy, Executive Order No. 13769. As such, amici have included in their brief personal stories of Iranians concerning the extensive screening procedures to which they already were subjected before entering the United States, and the harm that these individuals suffered and will continue to suffer under the Executive Order if it is implemented. Given the rigor of the current screening procedures, amici also include legal arguments demonstrating that the travel ban’s restrictions are irrational even under the lowest constitutional standard of review, and explain that the unprecedented nature of the travel ban—barring six entire nationalities on a categorical basis—bespeaks an exceedance of the President’s ostensible statutory authority.
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Dated: March 28, 2017

Respectfully submitted,
/s/ David R. Fox Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

4

Case 1:17-cv-00255-TSC Document 42 Filed 03/28/17 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing Motion and Memorandum of Points and Authorities for The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders for Leave to File a Brief as Amici Curiae in Support of Plaintiffs’ Motion for a Preliminary Injunction and all attachments thereto with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
5

Case 1:17-cv-00255-TSC Document 42-1 Filed 03/28/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. 1:17-cv-00255-TSC Electronically Filed

[PROPOSED] ORDER
Upon consideration of the Motion for The Foundation for the Children of Iran (FCI), Children of Persia (COP) and Iranian Alliances Across Borders (IAAB), filed on March 27, 2017, for leave to file a brief as amici curiae, any response, and the entire record of this case, and having determined that good cause has been shown for granting the Motion, it is hereby
ORDERED that the Motion is granted; and it is FURTHER ORDERED that The Foundation for the Children of Iran (FCI), Children of Persia (COP) and Iranian Alliances Across Borders (IAAB) are granted leave to participate as amici curiae in the above-captioned case; and it is FURTHER ORDERED that the Clerk shall accept for filing the brief of The Foundation

1

Case 1:17-cv-00255-TSC Document 42-1 Filed 03/28/17 Page 2 of 2 for the Children of Iran (FCI), Children of Persia (COP) and Iranian Alliances Across Borders (IAAB) as amici curiae. So ordered this _____ day of _____________, 2017.
___________________________ Hon. Tanya S. Chutkan U.S. District Court Judge
2

Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC Electronically Filed

BRIEF FOR THE FOUNDATION FOR THE CHILDREN OF IRAN, CHILDREN OF PERSIA AND IRANIAN ALLIANCES ACROSS BORDERS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Dated: March 28, 2017

Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 2 of 29
TABLE OF CONTENTS
 TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF THE AMICI CURIAE ............................................................................................1 BACKGROUND .............................................................................................................................3
I. Azar and Ahmad.......................................................................................................5 II. Banu and Basir.........................................................................................................7 III.  Dr. David Overman..................................................................................................8 IV.  Dalir.........................................................................................................................8 SUMMARY OF ARGUMENT .....................................................................................................10 ARGUMENT .................................................................................................................................12 I.  The Executive Order’s Travel Ban Is Irrational. ...................................................12
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough................................................................................................... 12
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban. ......................15
III. The President’s Statutory Authority Under Section 212(f) of the INA Does Not Justify the Executive Order.............................................................................20
CONCLUSION ..............................................................................................................................24

Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 3 of 29

TABLE OF AUTHORITIES

Cases

Page(s)

Aziz v. Trump, __ F. Supp. 3d ___, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ............................................................................................................4

* City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...........................................................................................................18, 20

* Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332 (1994).................................................................................................................21

* Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947).................................................................................................................23

Hawai‘i v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)...........................4, 16

Int’l Refugee Assistance Project v. Trump, __ F. Supp. 3d ___, No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017)........................................................................................................4, 16

Jimenez v. Weinberger, 417 U.S. 628 (1974).................................................................................................................12

Mathews v. Diaz, 426 U.S. 67 (1976)...................................................................................................................12

McDonnell v. United States, 136 S. Ct. 2355 (2016) .............................................................................................................22

Miller v. Alabama, 132 S. Ct. 2455 (2012) .............................................................................................................18

Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .................................................................................................12

Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................12

* Romer v. Evans, 517 U.S. 620 (1996)...........................................................................................................13, 16

Rust v. Sullivan, 500 U.S. 173 (1991).................................................................................................................23

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Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 4 of 29
* U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973)...........................................................................................................12, 13
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................4
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................23
Statutes 8 U.S.C. § 101................................................................................................................................23 8 U.S.C. § 1151..............................................................................................................................23 8 U.S.C. § 1153..............................................................................................................................23 8 U.S.C. § 1182(a) .........................................................................................................................21 *8 U.S.C. § 1182(f)......................................................................................................11, 20, 21, 22 8 U.S.C. § 1201(g) .........................................................................................................................13 Other Authorities 22 C.F.R. § 41.31(a)(3) ..................................................................................................................14 51 Fed. Reg. 30,470 (Aug. 22, 1986).............................................................................................23 Executive Order No. 13769 ................................................................................................... passim Executive Order No. 13780 ................................................................................................... passim Fed. R. App. P. 29(a)(4)(E)..............................................................................................................1 LCvR 7(o) .......................................................................................................................................1 * Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief (Cong. Res.
Serv. Jan. 23, 2017) .................................................................................................................23 Norman Singer & Shambie Singer,
2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016) .........................................................................................23
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INTEREST OF THE AMICI CURIAE1 Amicus The Foundation for the Children of Iran (FCI) is a 501(c)(3) organization that helps arrange health-care services, including life-saving treatments, for Iranian children and children of Iranian origin. Based in Bloomington, Minnesota, FCI relies on a global network of volunteers to serve the needs of as many children as possible, regardless of race, creed, religious belief, or political affiliation. Essential to FCI’s mission is the ability of children residing in Iran and their parents to travel to the United States on non-immigrant visas over the course of several years to obtain the critical medical treatment that they need. Amicus Children of Persia (COP) is a 501(c)(3) charitable organization based in Maryland that supports disadvantaged Iranian children and their families in Iran and around the world. COP has helped rebuild earthquake-damaged schools in Iran, delivered equipment to Iranian hospitals, and provided food, clothing and medical care to disadvantaged children in Iran. COP also provides scholarships to college students of Iranian descent in the United States. COP’s charitable work in Iran frequently requires its members to travel between Iran and the United States. Amicus Iranian Alliances Across Borders (IAAB) is a 501(c)(3) organization based in New York City that seeks to strengthen America’s Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across borders and multiple communities. IAAB includes over a thousand members of Iranian descent or nationality and works by empowering members of the Iranian diaspora community to deepen
1 No parties’ counsel authored this brief in whole or in part, no party or its counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici or their counsel contributed money that was so intended. See LCvR 7(o)(5); Fed. R. App. P. 29(a)(4)(E). Amici describe their authority to file in the concurrently filed motion in accordance with LCvR 7(o)(1)-(2).
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connections with their new communities while continuing to maintain their roots. These activities rely in large part on the ability of IAAB members to travel between the United States and Iran, including on non-immigrant student visas.
The Executive Order at the heart of this case, Executive Order No. 13780 (“Executive Order” or “the Order”), which supersedes a prior version of the same policy, Executive Order No. 13769 (“the Prior Order”), poses a grave threat to amici and their respective missions. Among other things, with certain limited exceptions for government officials, the Executive Order bars any Iranian national (as well as nationals of Libya, Somalia, Sudan, Syria and Yemen, with whom amici stand in solidarity)2 from entering the United States for a period of at least 90 days. See Executive Order, § 2(c). Those affected by the Order include Iranian nationals who have previously been allowed to enter the United States on student, work or visitor visas, and who will need to renew or reapply for those visas when their current entry authorizations expire. Many of amici’s members and other constituents, as well as their relatives and friends, have found their ability to travel severely curtailed as a result. For some, the consequences of the Executive Order’s restrictions could be severe: for the children served by amicus FCI, for example, their ability to travel to the United States for life-saving medical care is a matter of lifeor-death.
Given both the vital importance of the legal questions presented to their members and other constituents, amici have a strong interest in supporting the allowance of plaintiffs’ motion for a preliminary injunction, and are well-positioned to explain why that result is the correct one. To that end, amici have included in this brief not only legal arguments, but also personal stories
2 The Prior Order also banned the entry of Iraqi nationals. The current Order does not categorically ban the entry of such persons, but subjects them to “additional scrutiny” when they apply for visas, admission, or other immigration benefits, “including, as appropriate, consultation with a designee of the Secretary of Defense.” Executive Order, §§ 1(g), 4.
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Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 7 of 29
of Iranians concerning the extensive screening procedures to which they already were subjected
before entering the United States, and the harm that these individuals suffered and continue to suffer under the Executive Order.3
BACKGROUND
On January 27, 2017, President Trump issued the Prior Order which, inter alia,
suspended entry and the issuance of visas to nationals from seven countries: Iran, Iraq, Libya,
Somalia, Sudan, Syria and Yemen. The avowed “[p]urpose” of the Prior Order was “to protect
Americans” by “ensur[ing] that those admitted to this country do not bear hostile attitudes
toward it and its founding principles.” Prior Order, § 1. Purportedly to that end, the Prior Order
instituted a 90-day ban on the “immigrant and nonimmigrant entry into the United States of
aliens from” the seven countries while the Departments of State and Homeland Security as well
as U.S. intelligence officials undertake a “review” of the United States’ current visa-application
and issuance process. Id. § 3(a)-(c).
The Prior Order’s enforcement was enjoined by several federal district courts almost as
soon as it was issued, as a result of legal challenges brought by various plaintiffs across the
country. See, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017); Aziz v. Trump, __ F.
3 For the safety of these individuals and their families, the italicized names used in this brief are pseudonyms. Given the heightened tension surrounding these issues, as well as the reported threats made against individuals associated with these proceedings, e.g., federal judges connected to litigation challenging the current Order and the Prior Order, these individuals are understandably fearful about revealing their identities. See Lynn Kawano, Hawaii Judge Who Blocked Travel Ban Gets Protection Detail, Hawaii News Now (Mar. 22, 2017), available at http://www.hawaiinewsnow.com/story/34977777/hawaii-judge-who-blocked-travel-ban-getsprotection-detail-following-threats (visited Mar. 23, 2017); Evan Perez, et al., Threats Against Judges in Immigration Ban Cases Leads to Increased Security, CNN (Feb. 9, 2017), available at http://www.cnn.com/2017/02/09/politics/judges-threatened-immigration-order (visited Mar. 23, 2017). These individuals also fear retaliation by Iran’s government and its supporters should they be publicly identified as beneficiaries of American charities and organizations such as amici.
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Supp. 3d ___, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). In response to these injunctions, defendants issued on March 6, 2017 the current, superseding Executive Order now at issue. The current Order’s stated purpose is substantially the same as the Prior Order’s: “to protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” Executive Order, § 1(a). And the current Order seeks to achieve that end via means nearly identical to those employed by the Prior Order, i.e., by instituting a 90-day, categorical ban on the entry of foreign nationals from certain designated countries, and suspending the United States’ participation in refugee resettlement, purportedly while the federal government undertakes a review of the “screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program.” Id. §§ 1(a), 2, 6.4
The current Order retreats from the Prior Order in a few respects. For example, the current Order, unlike the Prior Order, expressly does not apply to lawful permanent residents, or to foreign nationals who were authorized to enter the United States when the Prior Order was issued, or to foreign nationals who have valid visas on the effective date of the current Order. Id. § 3(a)-(b). The exemptions for those who previously received visas, however, are cold comfort to those who, like many of the individuals whose personal stories are reported below, will need to leave the United States only to return later, e.g., for subsequent surgical treatments, and who thus would be denied entry under the Executive Order when they later seek to reapply for or renew their visas (absent a waiver from the Secretaries of State and Homeland Security, id. § 3(c)). And as mentioned, see note 2, supra, the current Order singles out for exclusion
4 The current Executive Order was due to take effect on March 16, 2017, but its enforcement also has been enjoined by federal district courts in Hawaii and Maryland. See Executive Order, § 14; Int’l Refugee Assistance Project v. Trump, __ F. Supp. 3d ___, No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017); Hawaii v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).
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nationals from the same seven countries as the prior Order, the only exception being that Iraqi nationals are now subject to special review by the Department of Defense, rather than a categorical entry bar. Id. § 4. The categorical bar for nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen remains unchanged. Id. § 2(c). As the following personal stories that have been relayed to amici demonstrate, however, nationals from these countries, including children seeking medical attention and students from Iran, already must undergo an extensive and lengthy vetting process to obtain visas to enter the United States. The Executive Order nevertheless bars those who have cleared that existing screening process from entry, and has thereby caused tremendous stress and terrible disruption to these individuals and their families. I. Azar and Ahmad
Azar and her husband live in Iran with their teenage daughter and eight-year-old son, Ahmad.5 Ahmad suffers from a univentricular heart. Azar and Ahmad first came to the United States on B-2 visitor visas when Ahmad was three-years-old because Ahmad required treatment not available in Iran—a surgery called the Fontan procedure.
Obtaining those visitor visas was a difficult process. First, only Azar and Ahmad could receive visas, separating the family while Azar and Ahmad traveled to the United States. In FCI’s experience, the United States will grant only one parent (typically the mother) a visa to enter the United States out of fear that, if both parents are granted visas, they will not return to Iran. Therefore, as with all of FCI’s beneficiaries, FCI recommended that only the mother and child seek visitor visas.
Second, Azar and Ahmad were both required to travel to the American embassy in Dubai for an interview because the United States does not maintain an embassy or consulate in Iran.
5 As described supra, note 3, the identities of Iranian nationals have been anonymized using pseudonyms.
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Besides the documents described infra at 15-17, Azar also brought, inter alia, documentation regarding FCI’s financial support of Azar and Ahmad, which included a place to stay while in the United States, and medical documentation detailing Ahmad’s medical condition and the lack of treatment options in Iran. Azar was required to return to the embassy four times with additional documentation before she and Ahmad were finally issued visas. Azar stayed in Dubai for over a month in an effort to obtain a visa for travel to the United States to seek life-saving medical treatment for her sick child.
Ahmad’s first surgery in the United States was a success, but it was only the first of a planned series of procedures, as is typical with the Fontan procedure. Ahmad required significant post-operative recovery time. Azar and Ahmad stayed in the United States for four months and then returned to Iran. Four years later, when Ahmad was seven-years-old, he was scheduled for his next surgery. Again Azar was required to travel with Ahmad to Dubai for an interview. This time, a woman working at the embassy told Azar that, because Azar was not a resident of Dubai, she could not obtain a visa from the embassy in Dubai. After much uncertainty and anguish, this misunderstanding was resolved and Azar was able to obtain visas for herself and Ahmad. Azar and Ahmad traveled again to the United States, where they stayed for three months after Ahmad’s surgery.
Ahmad is now eight-years-old. Azar and Ahmad traveled to the United States a third time in November 2016 for another surgery. Ahmad is currently recovering from that surgery and doctors expect that he will require a fourth soon. Azar and Ahmad’s visas expire in May 2017. Azar longs to be reunited with her husband and daughter in Iran but now fears that if she and Ahmad leave the country they will not be permitted to return to the United States for the required next surgery.
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II. Banu and Basir Banu, her husband, daughter and son Basir live in Iran. Basir was born in late 1998 with
a congenital heart defect that resulted in a lack of oxygen in his blood. Banu and her husband consulted the best Iranian doctors, but none in Iran could help Basir or could keep him alive. Their only hope for Basir’s survival was in the United States. Banu contacted FCI, which assisted Banu with the visa-application process.
Banu, her husband and Basir traveled to the U.S. embassy in Turkey for Banu and Basir’s interviews when Basir was still an infant. Basir was extremely sick and required constant oxygen and medication during the interview process.
Banu and Basir were issued visas and traveled to the United States for Basir’s surgery. At 44-days-old, Basir was so sick that he was greeted by an ambulance at the airport gate and immediately transported to a hospital. Basir’s surgery was successful but his recovery was lengthy. Banu’s visa was valid for only three months, and therefore she needed to return to Iran. FCI was able to assist Banu’s husband with obtaining a visa so that he could be with Basir during the remainder of Basir’s recovery.
Basir returned to the United States in 2012 for an anticipated additional surgery and recovered well. Today, Basir is an eighteen-year-old student at the best university in Iran. He enjoys playing soccer and is a chess champion. After his 2012 surgery, however, doctors anticipated that he would need additional surgery in another five to ten years—between 2017 and 2022—and Basir is now within that window. He is under the care of doctors in Iran, who consult with U.S. physicians as needed. Although Basir’s condition is currently stable, it is difficult to predict when in the next five years he will need his additional surgery. FCI, Banu and Basir are concerned that the Executive Order could prevent Basir from receiving further life-
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saving surgery should an urgent need arise during the 90-day travel ban. III. Dr. David Overman
Dr. David Overman is Chief of the Division of Cardiovascular Surgery at Children’s Hospitals and Clinics of Minnesota and a staff surgeon. His clinical interests include the surgical management of congenital heart disease. He has specific expertise with hypoplastic left heart syndrome and complex neonatal repairs, as well as aortic root disease and the Ross Procedure.
Dr. Overman is Medical Director of Children’s HeartLink, a non-governmental organization that builds partnerships between pediatric cardiac programs in the developing world and in North America and Europe. Dr. Overman began working with FCI in early 1999 when he operated on Basir. Since then, Dr. Overman has operated on approximately 15 Iranian children brought to the United States by FCI. Some of these children, like Basir, require close monitoring and multiple surgeries.
Dr. Overman’s role with FCI involves evaluating the medical records of potential beneficiaries to determine whether they may be good candidates for treatment in the United States, performing surgery on these beneficiaries if they do come to the United States, and working remotely with doctors in Iran to monitor their conditions. Dr. Overman is concerned that if the Executive Order remains in place, it will interfere with his ability to offer necessary life-saving medical treatment to his patients. IV. Dalir
Dalir is a Ph.D. chemistry student in the Midwestern United States. As an Iranian, he counts himself lucky to have obtained a student visa to enter the United States. As with all student visa applicants, Dalir was first required to obtain acceptance at an American university. He was accepted in 2015 and immediately applied for an F-1 (student) visa for himself and an F-
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2 (dependent) visa for his wife. After submitting the necessary applications, photographs and fees, he made an appointment for them to travel to Dubai to be interviewed at the U.S. embassy. At his interview, he presented, inter alia, his research plan, statement of purpose, certificate of marriage and bank statements. He and his wife were fingerprinted. Two months later, they received their visas. Dalir was pleasantly surprised that they received multiple-entry visas; in Dalir’s experience, most Iranian students receive only single-entry visas, which are valid for five years. Because their visas are multiple-entry visas, however, they are valid for only two years (until the summer of 2017).
Dalir and his wife arrived in the United States for the fall semester 2015. By the end of 2016, they had not been to Iran for over one year and missed their families. They decided to return to Iran for the winter holidays. Dalir could stay only two weeks due to his academic demands. His wife, not being a student, could stay longer and planned to return to the United States in February. After hearing rumors of a forthcoming travel ban, however, Dalir immediately called his wife and rescheduled her return. His wife was in the air, attempting to reunite with her husband, when President Trump signed the Executive Order.
His wife’s itinerary took her from Iran to Chicago via Frankfurt. She landed in Frankfurt shortly after the Executive Order was signed. Two hours into her layover, the airline informed her that she would not be allowed to board her flight to Chicago due to the Executive Order and put her on a plane back to Iran.
The next week was extremely difficult for Dalir and his wife. Both feared that they would not be able to see one another again unless Dalir quit his Ph.D. program. Dalir’s worry that he would not be reunited with his wife prevented him from concentrating on his studies. For six days, he desperately followed the news. He was aware of the TRO issued by a federal district
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court in Boston, but also knew that airlines were not allowing Iranian visa holders to board planes bound for the United States. When Dalir learned that Lufthansa was allowing Iranian visa holders to board planes bound for Boston, he immediately called his wife. Dalir had told her to pack her bags and be prepared to leave. It was 2 am in Iran, but he convinced his wife to get to the airport for a 7 am flight. Dalir booked her ticket and she immediately left for the Tehran airport. Simultaneously, Dalir began a seventeen-hour car ride to Boston.
Dalir arrived in Boston just as his wife’s flight was landing. As he waited at the international arrivals area, Dalir grew concerned when he did not see his wife for several hours, despite seeing other passengers exit customs. She emerged three hours after landing, following secondary screening.
Dalir and his wife got back into the car and drove another seventeen hours home. The travel ban had significant impacts on Dalir’s studies—e.g., he delayed one of his seminars that was scheduled to take place during the six days when he was trying to bring his wife back into the United States—which he continues to work with his university to resolve. Although Dalir and his wife may lawfully remain in the United States until Dalir completes his Ph.D. program, they fear that they will be unable to obtain additional visas when their current visas expire, leaving them potentially unable to visit their families for three years.
SUMMARY OF ARGUMENT Even as revised, the Executive Order cannot satisfy the comparatively less demanding rational-basis standard of review, rendering it unconstitutional. The United States’ preexisting visa-application process and other screening procedures are already aimed specifically at the problems that the Executive Order purportedly seeks to solve—preventing terrorism inside the United States. As described by the compelling stories above from the amici’s members and
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other constituents, these visa-application procedures are stringent, even for a newborn baby seeking a visa to the United States for life-or-death surgery. Nor can the unconstitutional stain be cleansed by the Order’s limit of countries to which the travel ban applies. Indeed, the irrationality of the travel ban is further confirmed by the list of countries singled out by the Executive Order, which is both under-inclusive and over-inclusive in relation to the national origins of the perpetrators of the recent terrorist attacks that allegedly provide the justification for the travel ban. The lack of any rational impetus for the Order’s travel ban alone not only renders it unconstitutional under the Equal Protection and Due Process Clauses, but also lends support to Plaintiffs’ Establishment Clause challenge. With no rational basis for the categorical ban on travel from these countries where upwards of 90%, and in some cases 99%, of the population is Muslim, the only reasonable conclusion to draw is that the ban in fact is the result of animus against Muslims, regardless of whether the Order is facially neutral with respect to religion.
There are statutory flaws with the travel ban as well. Although the Executive Order relies on 8 U.S.C. § 1182(f) for its purported authority to exclude all nationals of six countries, a holistic reading of that statute refutes that claim. That provision states that the President may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants,” but does not define “classes of aliens.” Another part of the same section defines multiple “classes of aliens”—but none by reference to immutable characteristics such as nationality. Reading the statute as a whole, 8 U.S.C. § 1182(f) does not permit the President to bar entire nationalities without some individualized consideration of applicants for admission. Because the Executive Order exceeds the proper scope of the President’s statutory authority, it cannot stand.
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ARGUMENT I. The Executive Order’s Travel Ban Is Irrational.
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough.
Even acknowledging that the political branches of the federal government have comparatively “broad power over naturalization and immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), any distinction that the federal government may wish to draw between noncitizens based on national origin still must satisfy at least “rational basis” review. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979). Because the Executive Order’s travel ban operates selectively with respect to only certain foreign nationals, depending on their national origin, it must be supported by at least some “assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler v. Doe, 457 U.S. 202, 216 (1982). While comparatively less demanding than other standards of review in federal constitutional law, the rational-basis standard is far from a meaningless rubber stamp on the actions of the political branches. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 636-37 (1974) (striking down provision of the Social Security Act as not rationally connected to provision’s asserted purpose); U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534-36 (1973) (striking down as irrational statute withholding food stamps to households with unrelated members).
The travel bans fails to satisfy even this most deferential standard. As alluded to by the personal experiences recounted above, the United States’ preexisting visa-application process and other screening procedures that have been in place for quite some time are all “aimed specifically at the problems” that the Executive Order’s travel ban purportedly seeks to solve. Moreno, 413 U.S. at 536. Indeed, the Executive Order acknowledges that these procedures were already tightened significantly in response to the September 11 attacks. See Executive Order,
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§ 1. “The existence of these provisions necessarily casts considerable doubt upon the proposition that the [travel ban] could rationally have been intended to prevent those very same [harms].” Moreno, 413 U.S. at 536-37. Moreover, a law that, like the Order, lacks any rational connection to its asserted aims is more likely to have in fact been motivated by a constitutionally improper purpose, such as “a bare … desire to harm a politically unpopular group” (in this case Muslims). Id. at 534; accord Romer v. Evans, 517 U.S. 620, 635 (1996) (laws that impose “disadvantage[s] … born of animosity toward the class of persons affected” lack a constitutionally legitimate purpose).
Any supposed rational-basis for the categorical ban of travel for individuals from the targeted countries is dispelled by the fact that the United States government currently employs stringent standards regarding the admission of most nonimmigrants into the United States. When foreign nationals wish to enter the United States, they first must obtain visas unless they are from one of only 38 visa-waiver countries where a visa is not required for stays of 90 days or less for tourism or business reasons (and even then, only if they are not also a national of Iraq, Iran, Syria, or Sudan). U.S. Dep’t of State, Visa Waiver Program, available at http://travel.state.gov/content/visas/en/visit/visa-waiver-program.html (visited Feb. 15, 2017). The process for obtaining a nonimmigrant visa to the United States is lengthy, expensive and difficult—particularly for Iranian Americans. Over 45 percent of Iranian B-visa seekers were denied visas in Fiscal Year 2016.6 See U.S. Dep’t of State, Adjusted Refusal Rate—B-Visas Only By Nationality Fiscal Year 2016, available at http://travel.state.gov/content/dam/visas/Statistics/ Non-Immigrant-Statistics/RefusalRates/FY16.pdf (visited Feb. 15, 2017).
6 In FCI’s experience, the Department of State denies many Iranian visa seekers’ applications for incomplete applications or supporting documentation. See 8 U.S.C. § 1201(g).
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Applicants for nonimmigrant visas must complete an application, submit photographs, pay an application fee and schedule an interview at a U.S. embassy or consulate. U.S. Dep’t of State, Student Visa, available at http://travel.state.gov/content/visas/en/study-exchange/student. html (visited Feb. 15, 2017) (applicable to F-1 and F-2 visa applicants); U.S. Dep’t of State, Visitor Visa, available at http://travel.state.gov/content/visas/en/visit/visitor.html (visited Feb. 15, 2017) (applicable to B-2 visa applicants, including those seeking medical treatment). The application form itself is lengthy, asking for information such as a list of all of the countries the applicant has entered in the last ten years and all professional, social and charitable organizations to which the applicant has belonged or contributed, or with which the applicant has worked. Applicants seeking visas for medical reasons additionally must submit an invitation letter from the hospital and doctors providing treatment, medical documentation describing the illness (translated) and a letter from a doctor stating the reasons why the planned treatment cannot or should not be performed in Iran or a neighboring country such as Turkey. Many FCI beneficiaries also require affidavits of support from sponsors if the beneficiaries cannot afford to travel with their own funds, lest the consular official determine their personal financial situation to be insufficient. See 22 C.F.R. § 41.31(a)(3). Because the United States does not maintain an embassy or consulate in Iran, Iranian nationals seeking visas to enter the United States must travel to a third country for their interviews. Travel to that third country (for example, the United Arab Emirates), also requires a visa. Applicants must bring significant documentation with them to their visa interviews, including six months of bank statements (translated and officially stamped). Applicants are also fingerprinted during their interviews.
Put simply, the U.S. government has already addressed its purported concerns set forth in the Executive Order by adopting and maintaining comprehensive and stringent visa requirements
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from individuals in the targeted countries. An absolute ban for 90 days has no rational basis. Indeed, in this litigation, the government has never suggested what further screening processes might be put into place at the end of the 90-day review period that would improve upon those already in place for nationals of the six countries who are categorically barred from entry. As discussed in the following section, the evidence is that the existing procedures are working insofar as adult nationals from these countries have not traveled to the United States and participated in terrorist attacks in the past two decades. In the absence of identified problems with the existing screening process for persons from these countries and with no indication that a “solution” to the non-existent problems is forthcoming, there is at a minimum a reasonable likelihood that plaintiffs will succeed in establishing that the Executive Order lacks a rational basis.
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban.
The rationality of the Executive Order’s travel ban also is in doubt because of the manner in which it operates. The ban is both selective—targeting only foreign nationals from the seven referenced countries—but at the same time broad, prohibiting any alien from those countries from entering the United States, even minors, and regardless of the grounds on which that entry is sought: for work, for study, for resettlement as a refugee fleeing an active war zone, for medical treatment that is unavailable in their home countries, or for short-term visits with family members residing in the United States. See Executive Order, § 2(c). Viewing the Executive Order’s selective travel ban in light of the Order’s stated reasons for it, the ban’s arbitrary harshness presents a second, independent reason why it lacks a rational basis, and all the more reason for concluding that its restrictions are meant to spite an unpopular class of persons, rather than to serve any legitimate security-related aim.
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The Executive Order’s stated justification for barring the entry of all foreign nationals
from Iran, Libya, Somalia, Sudan, Syria and Yemen is the concern that any national from those
countries might commit terrorist acts in the United States, perhaps at the behest of terrorist
organizations, and the Executive Order points to “hundreds of [unspecified] persons born abroad
[that] have been convicted of terrorism-related crimes in the United States” since 2001 as
support. Executive Order, § 1(h). The problem, however, is that those “persons born abroad”
and the history of domestic terrorist incidents in the United States since 2001 lend no support to
the Executive Order’s selective and discriminatory ban. Indeed, the list of countries whose
nationals the Executive Order has singled out bears little or no correlation to the places from
which those who have attempted or committed terrorist attacks within the United States have hailed over the last 16 years.7
To begin, the Order is over-inclusive. Romer, 517 U.S. at 632 (laws fail rational basis
review where their “sheer breadth is so discontinuous with the reasons offered for it that [they]
seem[] inexplicable by anything but animus toward the class [they] affect[]”). There have been
only a handful of persons who originally hail from some of the countries the Executive Order
singles out and who have carried out or attempted to carry out terrorist plots since 9/11 that did
not result in fatalities. These include one car-ramming attack carried out in 2006 by an Iranian-
7 Defendants have argued that Congress and the prior administration identified these seven countries as ones presenting “terrorism-related concerns,” and that the Executive Order merely adopts that prior determination and enhances the security measures with regard to those countries. But neither Congress nor the prior administration banned nationals from those countries from entering the United States for any period of time, as the Executive Order does. Indeed, a Department of Homeland Security assessment found that “‘country of citizenship is unlikely to be a reliable indicator of potential terrorist activity’ and that ‘few of the impacted countries have terrorist groups that threaten the West.’” Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235, at *15 (D. Md. Mar. 16, 2017) (discussing report available at https://assets.documentcloud.org/documents/3474730/DHS-intelligencedocument-on-President-Donald.pdf); accord Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *6 (D. Haw. Mar. 15, 2017) (same).
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American lawful permanent resident (“LPR”) in Chapel Hill, North Carolina in 2006;8 an unsuccessful plot by a Somali-American who planned to bomb a Christmas tree lighting in Portland, Oregon in 2010;9 an attack involving multiple stabbings by a Somali-American at a shopping mall in St. Cloud, Minnesota in 2016;10 and another car-ramming attack carried out by a Somali-American LPR at Ohio State University in 2016.11
To put these four individuals in broader perspective, there are approximately 500,000 persons of Iranian ancestry and 130,000 persons of Somali ancestry living in the United States, according to 2011 American Community Survey data.12 These incidents also offer no reason whatsoever for the inclusion of the other five countries in the Executive Order’s travel ban. Moreover, even with respect to these four incidents, there is no credible basis for believing that the Executive Order’s travel ban, sweeping as it is, would have done anything to prevent them. Two of the four incidents—the 2006 car-ramming attack and the 2010 bomb plot—involved naturalized U.S. citizens who immigrated to the United States as young children and lived here
8 Jessica Rocha, et al., Suspect Says He Meant to Kill, Charlotte News & Observer (Mar. 8, 2006), available at http://web.archive.org/web/20081013151023/http://www.newsobserver.com/ news/v-print/story/415421.html (visited Feb. 15, 2017). 9 US ‘Foils Oregon Bomb Plot’, ALJAZEERA (Nov. 27, 2010), available at http://www. aljazeera.com/news/americas/2010/11/2010112764714953451.html (visited Feb. 15, 2017). 10 FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, CHI. TRIB. (Sept. 18, 2016), available at http://www.chicagotribune.com/news/nationworld/ctminnesota-mall-stabbing-20160918-story.html (visited Feb. 15, 2016). 11 Islamic State Group Claims Ohio State University Rampage, BBC (Nov. 30, 2016), available at http://www.bbc.com/news/world-us-canada-38151669 (visited Feb. 15, 2017). 12 See U.S. Census Bureau, 2011 American Community Survey 1-Year Estimates: Total Ancestry Reported (Dec. 22, 2012), available at http://ia601608.us.archive.org/26/items/2011American CommunitySurveyAncestry/2011Acs.pdf (visited Feb. 15, 2017).
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for many years before engaging in terrorism.13 The individuals at the center of the other two
incidents reportedly also came to the United States as children—one at age seven and the other at age 16—and did not carry out their attacks for years after arriving.14 The idea that it is rational
to ban toddlers from entering the country out of a speculative fear that they might someday grow
up to be terrorists is implausible, and offends our most basic principles. Cf. Miller v. Alabama,
132 S. Ct. 2455, 2464-65 (2012) (recognizing that fundamental differences between juveniles
and adults that makes it difficult to predict with confidence how children will behave as they
mature). Nor could any “enhanced screening” plausibly determine which young children will
grow up to be terrorists.
The Order is also arguably under-inclusive—another sign of irrationality that often
bespeaks constitutionally impermissible animus toward those few the law actually targets. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (rejecting need to regulate
population density of group homes for mentally disabled residents as a justification for a zoning ordinance requiring special permits for such facilities because other types of facilities presenting
identical concerns were not subject to similar requirements). There have been twelve persons
who have succeeded in carrying out fatal terrorist attacks inside the United States since the
September 11, 2001 attacks; not a single one of these attacks was committed by anyone from the
13 See Rocha, et al., supra (reporting that 22-year-old perpetrator was born in Iran but “grew up in the Charlotte area, attending public school for 13 years until he graduated from South Mecklenburg High School in 2001,” five years before attack); Colin Miner, et al., F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack, N.Y. Times (Nov. 27, 2010), available at http://www. nytimes.com/2010/11/28/us/28portland.html (visited Feb. 15, 2017) (reporting that 19-year-old plotter attended middle school and high school in Oregon). 14 See FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, supra (reporting that 22-year-old perpetrator “was born in Africa and had lived in the U.S. for 15 years”); Islamic State Group Claims Ohio State University Rampage, supra (reporting that 18year-old perpetrator arrived in the United States two years before the incident, after living for seven years in a refugee camp in Pakistan).
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seven countries identified in the Executive Order.15 Three of them were of Pakistani heritage.16
Three more were African Americans who were born here.17 Another was Egyptian.18 Two were
of Chechen ancestry, born in former Soviet republics, and came to the United States from Russia
as children.19 And one each came from families that originally hailed from Kuwait, Afghanistan
and the Palestinian Territories.20 Indeed, even the September 11 attacks themselves had no
relation to any of the countries the ban is focused on, as the 19 foreign nationals who perpetrated
those attacks came to the United States from Saudi Arabia, Egypt, Lebanon and the United Arab
Emirates.21
15 See Peter Bergen, et al., In Depth: Terrorism in America After 9/11, Part II: Who are the Terrorists? available at https://www.newamerica.org/in-depth/terrorism-in-america/who-areterrorists/ (visited Feb. 15, 2017). 16 See San Bernardino Shooting: Who Were the Attackers?, BBC (Dec. 11, 2015), available at http://www.bbc.com/news/world-us-canada-35004024 (visited Feb. 15, 2017); Jennifer Sullivan, Seattle Jewish Center Shooter Gets Life Sentence, L.A. TIMES (Jan. 15, 2010), available at http://articles.latimes.com/print/2010/jan/15/nation/la-na-seattle-jewish-center15-2010jan-15 (visited Feb. 15, 2017). 17 See Sergio Peçanha & K.K. Rebecca Lai, The Origins of Jihadist-Inspired Attackers in the U.S., N.Y. TIMES (Dec. 8, 2015), available at http://www.nytimes.com/interactive/2015/11/25/ us/us-muslim-extremists-terrorist-attacks.html?_r=0 (visited Feb. 15, 2017) (Ali Muhammad Brown, Alton Nolen and Abulhakim Mujahid Muhammad). 18 See Los Angeles Airport Shooting Kills 3, CNN (July 5, 2002), available at http://edition. cnn.com/2002/US/07/04/la.airport.shooting/ (visited Feb. 15, 2017). 19 See Nina Burleigh, The Brothers Who Became the Boston Marathon Bombers, NEWSWEEK (Apr. 6, 2015), available at http://www.newsweek.com/brothers-who-became-boston-marathonbombers-319822 (visited Feb. 15, 2017). 20 See Orlando Gay Nightclub Shooting: Who Was Omar Mateen?, BBC (June 14, 2016), available at http://www.bbc.com/news/world-us-canada-36513468 (visited Feb. 15, 2017); Catherine E. Shoichet & Gary Tuchman, Chattanooga Shooting: 4 Marines Killed, A Dead Suspect and Questions of Motive, CNN (July 17, 2015), available at http://edition.cnn.com/2015/07/16/us/tennessee-naval-reserve-shooting (visited Feb. 15, 2017); James Dao, Suspect Was ‘Mortified’ About Deployment, N.Y. TIMES (Nov. 5, 2009), available at http://www.nytimes.com/2009/11/06/us/06suspect.html (visited Feb. 15, 2017). 21 September 11th Hijackers Fast Facts, CNN (Sept. 5, 2016), available at http:// cnn.com/2013/07/27/us/september-11th-hijackers-fast-facts (visited Feb. 15, 2017).
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In sum, even under rational-basis review, the record of terrorist attacks committed or
attempted in the United States since the September 11 attacks offers no basis for singling out the seven countries identified in the Executive Order for travel restrictions.22 Most of the countries
from which foreign terrorist attacks against the United States have originated are not even
included on the list; most of the countries that are on the list are ones from which no terrorist
threat has come at all in the period following the September 11 attacks; and even acknowledging
that a handful of recent attackers or would-be attackers were from these countries, because they
came here as children it seems inconceivable that any purported “enhanced screening” would
have prevented those incidents or more like them. Based on both its under-inclusiveness and
over-inclusiveness, the Executive Order’s travel ban “appears to rest on an irrational prejudice
against” nationals from the seven countries singled out for adverse treatment, which is not a
legitimate government interest that supplies the requisite rational basis. Cleburne, 473 U.S. at
450.
III. The President’s Statutory Authority Under Section 212(f) of the INA Does Not Justify the Executive Order. Even ignoring the substantial constitutional difficulties with the Executive Order’s travel
ban, Defendants’ principal statutory basis for it—Section 212(f) of the Immigration and
22 The Order also cites a case from January 2013 that involved “two Iraqi nationals admitted to the United States as refugees in 2009 [who] were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.” Executive Order, § 1(h). Of course, Iraqi nationals are not subject to categorical restrictions under the current Order, which amplifies rather than diminishes the Order’s irrationality. In any event, what the Order fails to mention is that is that the incident it relies on did not involve any planned attack on U.S. soil, but rather the provision of material support for such attacks in Iraq, and so has little if any connection to the Order’s asserted purpose of “protect[ing] the Nation from terrorist activities by foreign nationals admitted to the United States.” See Alex Nowrasteh, Trump Justifies Executive Order by Citing Terrorists Who Were Not Planning a Domestic Attack, Cato Institute (Mar. 6, 2017), available at https://www.cato.org/blog/trump-justified-executive-order-citing-terrorists-who-were-notplanning-domestic-attack (visited Mar. 23, 2017).
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Nationality Act (“INA”), 8 U.S.C. § 1182(f)—also fails to justify it. See Executive Order, § 2(c). To be sure, Section 212(f) is framed in broad language, authorizing the President to “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” when he 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.” 8 U.S.C. § 1182(f). But for the reasons to follow, the phrase “class of aliens” in Section 212(f) should not be interpreted to include “nationality” as a type of class.
The phrase “class of aliens” in Section 212(f) is not defined, and thus does not explicitly provide the President authority to define a “class” in terms of nationality or any similar immutable characteristic. Nor should it be interpreted to include such authority. Instead, the phrase “class of aliens” in Section 212(f) should be read in light of the same phrase as used elsewhere in the statute, specifically Section 212(a). See Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (“[I]dentical words used in different parts of the same act are intended to have the same meaning.”). Section 212(a) defines several specific “classes of aliens ineligible for visas or admission,” who are categorically “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). None of the “classes of aliens” set forth in Section 212(a) are defined in terms of immutable characteristics, such as nationality; rather, the categories are typically defined by reference to the alien’s individual conduct, and in some cases by mutable characteristics (e.g., infection with a communicable disease). See, e.g., id. § 1182(a)(1) (health-related grounds), (a)(2) (certain criminal activities or convictions), (a)(1) (communicable diseases), (a)(3) (terrorism, membership in totalitarian parties and related activities), (a)(6) & (9) (prior violations of U.S. immigration laws), (a)(7) (failure to present
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required documentation). The absence of any “classes” of aliens defined by immutable characteristics in Section 212(a) provides reason to believe that “any class of aliens” in 212(f) similarly excludes immutable characteristics such as nationality.
Put another way, the meaning of the phrase “any class of aliens” as used in Section 212(f) (emphasis added) should be determined in light of the “company it keeps” under “familiar” statutory-interpretation principles. McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). And here, the “company” that Section 212(f) keeps—the enumeration of specific “classes of aliens” identified in Section 212(a)—suggests that it was only meant to provide the President with the authority to temporarily exclude additional “classes of aliens” defined by their individual conduct or mutable characteristics, not their immutable characteristics such as nationality. 8 U.S.C. § 1182(f). Nowhere in Section 212 is there any contrary evidence that would support reading “class” to include an entire nationality.
Consistent with that limited reading of Section 212(f), the Executive Order’s categorical prohibition on all foreign nationals (other than certain government officials) from certain countries holding valid U.S. visas entering the United States is unprecedented in the history of the clause. Notwithstanding numerous wars, hot and cold, during Section 212(f)’s more than 60year history, during which Section 212(f) was invoked dozens of times, none of those invocations were to bar all aliens of a given nationality holding visas from entering the United
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States whether as immigrants or non-immigrants.23 Instead, suspensions pursuant to Section 212(f) usually were on the basis of only demonstrated conduct by specific aliens (e.g., committing human rights abuses, supporting terrorism, or participating in anti-democratic coups). See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief (Cong. Res. Serv. Jan. 23, 2017), at 1-2 & 6-10 (Table 1). That “contemporaneous and consistent” executive practice suggests that “any class of aliens” means something less than a whole nationality, and that understanding “is entitled to great weight” in construing the statute. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947); accord Norman Singer & Shambie Singer, 2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring) (“[A] systemic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”).
In summary, there is no clear indication that Congress meant to give the President carte blanche to prevent entire nationalities of aliens from entering the country. Section 212(f)’s grant of authority should be construed so as not to create unnecessary tension with the rest of Section 212, and thus construed, the Executive Order’s travel ban should be invalidated as an action that lies beyond the President’s authority. Cf. Rust v. Sullivan, 500 U.S. 173, 191 (1991).
23 An August 26, 1986 proclamation limited the entry of Cuban immigrants, but included broad categorical exceptions for Cuban nationals applying for admission as immediate relatives, “special immigrants”—which includes numerous categories of immigrants including lawful permanent residents returning from abroad—and “preference immigrants,” including those with family-sponsored and employment-based immigrant visas. See Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986); 8 U.S.C. §§ 101, 1151, 1153.
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CONCLUSION This Court should grant the plaintiffs’ motion for a preliminary injunction.

Dated: March 28, 2017

Respectfully submitted,
/s/ David R. Fox Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

24

Case 1:17-cv-00255-TSC Document 42-2 Filed 03/28/17 Page 29 of 29 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing Brief for the Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders as Amici Curiae in Support of Plaintiffs’ Motion for a Preliminary Injunction with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
25

Case 1:17-cv-00255-TSC Document 42-3 Filed 03/28/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC

LCvR 7.1 CERTIFICATE OF DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS BY THE FOUNDATION FOR THE CHILDREN OF IRAN

I, the undersigned, counsel of record for The Foundation for the Children of Iran (FCI),

certify that to the best of my knowledge and belief, the following are parent companies,

subsidiaries or affiliates of FCI which have any outstanding securities in the hands of the public:

FCI is a nonprofit organization that has no parent company and has not issued any stock.

These representations are made in order that judges of this court may determine the need

for recusal.

Dated: March 28, 2017

Respectfully submitted,

/s/ David R. Fox David R. Fox DC Bar No. 1015031 GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231 DFox@goodwinlaw.com
Counsel for Pending Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

1
ACTIVE/89744616.1

Case 1:17-cv-00255-TSC Document 42-3 Filed 03/28/17 Page 2 of 2 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing LCvR 7.1 Certificate of Disclosure of Corporate Affiliations and Financial Interests by the Foundation for the Children of Iran with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
2
ACTIVE/89744616.1

Case 1:17-cv-00255-TSC Document 42-4 Filed 03/28/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC

LCvR 7.1 CERTIFICATE OF DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS BY CHILDREN OF PERSIA

I, the undersigned, counsel of record for Children of Persia (COP), certify that to the best

of my knowledge and belief, the following are parent companies, subsidiaries or affiliates of

COP which have any outstanding securities in the hands of the public:

COP is a nonprofit organization that has no parent company and has not issued any stock.

These representations are made in order that judges of this court may determine the need

for recusal.

Dated: March 28, 2017

Respectfully submitted,

/s/ David R. Fox David R. Fox DC Bar No. 1015031 GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231 DFox@goodwinlaw.com
Counsel for Pending Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

1
ACTIVE/90173215.1

Case 1:17-cv-00255-TSC Document 42-4 Filed 03/28/17 Page 2 of 2 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing LCvR 7.1 Certificate of Disclosure of Corporate Affiliations and Financial Interests by Children of Persia with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
2
ACTIVE/90173215.1

Case 1:17-cv-00255-TSC Document 42-5 Filed 03/28/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC

LCvR 7.1 CERTIFICATE OF DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS BY IRANIAN ALLIANCES ACROSS BORDERS

I, the undersigned, counsel of record for Iranian Alliances Across Borders (IAAB),

certify that to the best of my knowledge and belief, the following are parent companies,

subsidiaries or affiliates of IAAB which have any outstanding securities in the hands of the

public:

IAAB is a nonprofit organization that has no parent company and has not issued any

stock.

These representations are made in order that judges of this court may determine the need

for recusal.

Dated: March 28, 2017

Respectfully submitted,

/s/ David R. Fox David R. Fox DC Bar No. 1015031 GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231 DFox@goodwinlaw.com

1
ACTIVE/89744617.1

Case 1:17-cv-00255-TSC Document 42-5 Filed 03/28/17 Page 2 of 3 Counsel for Pending Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders
2
ACTIVE/89744617.1

Case 1:17-cv-00255-TSC Document 42-5 Filed 03/28/17 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing LCvR 7.1 Certificate of Disclosure of Corporate Affiliations and Financial Interests by Iranian Alliances Across Borders with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
3
ACTIVE/89744617.1

 
 Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

____________________________________)

AMENDED MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES OF CIVIL RIGHTS ORGANIZATIONS
FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE1

The American-Arab Anti-Discrimination Committee, the Center for Constitutional

Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights,

The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice,

the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the

Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights

and Urban Affairs, (collectively, the “Civil Rights Organizations”), through undersigned counsel,

hereby move, pursuant to Rule 7(b) of the Federal Rules of Civil Procedure, for leave to file a

brief as amicus curiae, on the side of the Plaintiff.

In support of this Motion, the Civil Rights Organizations state as follows:

1. The Center for Constitutional Rights (“CCR”) is a national non-profit legal and

educational organization dedicated to advancing and protecting the rights guaranteed by the

United States Constitution and international human rights law. Founded in 1966, CCR has a long

history of litigating cases on behalf of those with the fewest protections and least access to legal
1 This motion was originally filed on March 27, 2017 (ECF No. 38). It is being resubmitted to include the Local Civil Rule 7(o) statement at the end, and in the amicus brief itself.

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 2 of 8
resources.. CCR regularly works with communities targeted by state discrimination, including Muslim Arab and South Asian (MASA) communities, which face distinct vulnerabilities at the intersection of national security and immigration. CCR has brought numerous cases challenging state practices premised on overbroad and stigmatizing assumptions about communities, including MASA communities. See Ziglar v. Abbasi, cert. granted, No. 15-1359, 2016 U.S. LEXIS 6272 (Oct. 11, 2016) (decision pending), (challenging discriminatory conditions of immigration detention against MASA individuals in connection with 9/11 investigations); Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015) (finding unconstitutional NYPD suspicionless surveillance program targeting Muslim communities in New Jersey); Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding unconstitutional and racially discriminatory, New York City’s widespread practice of “stop and frisk.”).
2. The Judge David L. Bazelon Center for Mental Health Law is a national public interest organization founded in 1972 to advance the rights of individuals with mental disabilities. The Bazelon Center advocates for laws and policies that provide people with mental illness or intellectual disability the opportunities and resources they need to participate fully in their communities. Its litigation and policy advocacy is based on the Americans with Disabilities Act’s guarantees of non-discrimination and reasonable accommodation. People with mental illness or intellectual disability commonly face discrimination based on myths and stereotypes, and the eradication of such discrimination is among the Bazelon Center’s primary goals.
3. The Washington Lawyers’ Committee for Civil Rights and Urban Affairs is a non-profit civil rights organization established to eradicate discrimination and poverty by enforcing civil rights laws through litigation. In furtherance of this mission, the Washington Lawyers’ Committee has a dedicated Immigrant Rights Project, which has served as a critical
2

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 3 of 8
resource for some of the most vulnerable populations in the Washington, D.C. area: newcomers and non-English speakers, who are often discriminated against on the basis of their religious background or national origin, and who are often unaware of their rights and protections under U.S. law.
4. Mississippi Center for Justice is a 501(c)(3) nonprofit public interest law organization founded in 2003 in Jackson, Mississippi and committed to advancing racial and economic justice. Supported and staffed by attorneys and other professionals, the Center develops and pursues strategies to combat discrimination and poverty statewide. One of amicus’ original areas of interest involved predatory loan practices directed at migrant poultry workers, and MCJ has remained concerned about the plight of Mississippi’s growing immigrant population for the last decade, particularly in the areas of access to healthcare, education, housing and fair lending.
5. The Center for Reproductive Rights (“CRR”) is a global human rights organization that uses the law to advance reproductive freedom as a fundamental right that all governments are legally obligated to respect, protect, and fulfill. In the United States, CRR’s work focuses on ensuring that all people have access to a full range of high-quality reproductive health care. Since its founding in 1992, CRR has been actively involved in nearly all major litigation in the U.S. concerning reproductive rights, in both state and federal courts, including most recently, serving as lead counsel for the plaintiffs in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). As a rights-based organization, the Center has a vital interest in protecting individuals endeavoring to exercise their fundamental rights free from unwarranted government intrusion and discrimination. CRR’s ability to bring litigation challenging executive and regulatory action, and to seek relief where individuals are threatened with irreparable harm,
3

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 4 of 8
is crucial to its mission. 6. The American-Arab Anti-Discrimination Committee (“ADC”) is the country’s
largest Arab American grassroots civil rights organization. Founded in 1980 by U.S. Senator James Abourezk, ADC consists of members from all 50 states and has multiple chapters nationwide. ADC conducts legal and policy work on immigration with a focus on asylum and refugee issues, and advocacy against discriminatory immigration laws, policies and regulations. ADC’s interest in this Case arises from the impact this Case decision will have on our constituents’ fundamental constitutional and federal rights.
7. Chicago Lawyers’ Committee for Civil Rights (CLCCR) is a 501(c)(3) nonprofit public interest law organization founded in 1969. CLCCR works to secure racial equity and economic opportunity for all. CLCCR provides legal representation through partnerships with the private bar, and collaborates with grassroots organizations and other advocacy groups to implement community-based solutions that advance civil rights. In all practice areas, including education equity, fair housing, economic opportunity, hate crime prevention and voting rights, CLCCR advocates for immigrants who have been subject to racially-discriminatory governmental practices and policies. CLCCR’s goal is to ensure that America fulfills its promise of democracy and equal justice for all.
8. The National Center for Lesbian Rights (“NCLR”) is a national non-profit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in combating discrimination and securing fair and equal treatment for LGBT people and their families in cases across the country involving constitutional and civil rights. NCLR has a particular interest in
4

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 5 of 8
protecting the rights of LGBT immigrants and other immigrants to this country. Since 1994, NCLR’s Immigration Project has provided free legal assistance to thousands of LGBT immigrants nationwide through, among other services, direct representation of immigrants in impact cases and individual asylum cases and advocacy for immigration and asylum policy reform.
9. Southern Coalition for Social Justice is a 501(c)(3) nonprofit public interest law organization founded in 2007 in Durham, North Carolina. SCSJ partners with communities of color and economically disadvantaged communities in the south to advance their political, social, and economic rights through the combination of legal advocacy, research, organizing and communications. Originally, one of amicus’ primary practice areas was immigrants’ rights and it remains important to our mission. SCSJ frequently advocates on behalf of immigrants who have been subject to racially-discriminatory governmental practices, and promotes the application of basic human rights principles to policies affecting migrant communities.
10. The National Coalition on Black Civic Participation is a 501(c)(3), non-profit, non-partisan organization dedicated to increasing civic engagement and voter participation in Black and underserved communities. The National Coalition strives to create an enlightened community by engaging people in all aspects of public life through service/volunteerism, advocacy, leadership development and voting. For nearly 40 years, The National Coalition has served as an effective convener and facilitator at the local, state and national levels of efforts to address the disenfranchisement of underserved and other marginalized communities through civic engagement.
11. This case, and several other related cases that seek to enjoin President Trump’s March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the
5

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 6 of 8
United States,” are important, and the participation of Civil Rights Organizations is desirable. The Amici are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form.
12. A court may grant leave to appear as amicus curiae if the information offered is timely and useful. Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). In Ellsworth, the court granted a motion to file an amicus curiae brief because the movants “have a special interest in [the] litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution” of those issues. Id. The Civil Rights Organizations respectfully submit that this standard is met here.
13. Amici’s proposed brief presents two arguments. First, amici submit that the public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, as the Order improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order’s focus on a religious minority demands strict scrutiny by this Court of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, even if this court were to review the Executive Order under a “rational basis” test, amici write separately to argue that the Order would still violate equal protection.
14. The proposed amici curiae brief is attached as an exhibit to this Motion. Local Civil Rule 7(m) Statement
Undersigned counsel, by email, determined that Jon Greenbaum, counsel for Plaintiff, consented to the filing of this motion. Undersigned counsel sent an email to Daniel S. Schwei,
6

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 7 of 8

counsel for the Defendant, who indicated that the Government took no position on our request to file this motion.
Local Civil Rule 7(o) Statement Undersigned counsel confirm, pursuant to Local Civil Rule 7(o) and Rule 29(a)(4), Fed. R. App. P., that (i) no party’s counsel authored the brief in whole or in part; (ii) no party or party’s counsel’ contributed any money that was intended to fund preparing or submitting the brief; and (iii) no person, other than amici curiae, their members and their counsel, contributed money that was intended to fund preparing or submitting the brief.

Respectfully submitted,

DATED: March 28, 2017

/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) Alan R. Kabat (Bar No. 464258) Christopher Sousa (Bar No. 1018547) BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

7

Case 1:17-cv-00255-TSC Document 49 Filed 03/28/17 Page 8 of 8 8

Case 1:17-cv-00255-TSC Document 49-1 Filed 03/28/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

ORDER

Upon consideration of the Amended Motion of the Center for Constitutional Rights, The

Judge David L. Bazelon Center for Mental Health Law, the Washington Lawyers’ Committee for

Civil Rights and Urban Affairs, the Mississippi Center for Justice, the Center for Reproductive

Rights, the American-Arab Anti-Discrimination Committee, the Chicago Lawyer’s Committee

for Civil Rights, the National Center for Lesbian Rights, and the Southern Coalition for Social

Justice (collectively, the “Civil Rights Organizations”), filed on March 28, 2017, for leave to file

a brief as amici curiae, any response, and the entire record of this case, and having determined

that good cause has been shown for granting the Motion, it is hereby,

ORDERED that the Motion is granted; and it is

FURTHER ORDERED THAT the Civil Rights Organizations are granted leave to

participate as amici curiae in the above-captioned case; and it is

FURTHER ORDERED that the Clerk shall accept for filing the brief of the Civil Rights

Organizations as amici curiae.

So ordered this _____ day of _____________, 2017.

34248701.1

Case 1:17-cv-00255-TSC Document 49-1 Filed 03/28/17 Page 2 of 2 ___________________________ Hon. Tanya S. Chutkan U.S. District Court Judge
34248701.1 2

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

AMICI CURIAE BRIEF OF NATIONAL AND REGIONAL CIVIL RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 2 of 33
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES
DANGEROUS CONDITIONS FOR MEMBERS OF MINORITY GROUPS. .................2 A. Stereotyping Minority Groups Creates A Climate For Discrimination. ..................2 B. The Executive Order Is Based On Stereotypes About Muslims And Arabs
As “Anti-American” And “Terrorists.” ...................................................................5 C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged
Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. ...........................................................8 II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST ..................................................................11 A. Animus Towards A Particular Group Is Not A Legitimate Government Interest....................................................................................................................11 B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest. ............................17 C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims ...................20 III. CONCLUSION..................................................................................................................25
- i AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 3 of 33
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) ......................................................................................................3
Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2011) ...................................................................................................12
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)...........................................................17, 18, 19, 24
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...............................................................................................12
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)...................................................................................................................4
Buck v. Davis, 580 U.S. ____, 137 S. Ct. 759 (2017)....................................................................................4, 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................................... 12, passim
Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985) .............................................................................................13
Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) .....................................................................................................4
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...................................................................................................................2
Hassan v. City of New York, 804 F.3d (2d Cir. 2016)..............................................................................................................3
Hawai‘i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).....................................................................19, 20
Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ...........................................................................................................19
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................11
- ii AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 4 of 33
Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...................................................................................................................2
Loving v. Virginia, 388 U.S. 1 (1967).......................................................................................................................4
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................9
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................20
Miller-El v. Dretke, 545 U.S. 231 (2005)...................................................................................................................3
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)...................................................................................................................3
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................13, 14, 17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................................................................2
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) .....................................................................................................3
Romer v. Evans, 517 U.S. 620 (1996)...............................................................................................13, 15, 16, 17
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)...................................................................................................................8
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................2
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) ........................................................................................................3
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...............................................................................................13, 16, 17, 25
United States v. Robel, 389 U.S. 258 (1967).................................................................................................................21
United States v. Stephens, 421 F.3d 503 (7th Cir. 2005) .....................................................................................................3
- iii AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 5 of 33
United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................................12, 16, 17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...........................................................................................11, 20
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................................................12
FEDERAL REGULATIONS
82 Fed. Reg. 13,209 (Mar. 9, 2017).................................................................................................7
82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................................................6
OTHER AUTHORITIES
Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP .....................................................................10
Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons ...................................................................................................21, 22
C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). .................................................................................................................7
Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kelly-travel-ban-muslimcountries ...................................................................................................................................22
David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climate-racial-intolerance%E2%80%99-fueled-anti-muslimpolitical-rhetoric .......................................................................................................................10
Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travelban-will-have-same-basic-policy-outcome.html .....................................................................19
- iv AMICI BRIEF OF CIVIL RIGHTS ORGANIZATIONS

Case 1:17-cv-00255-TSC Document 49-2 Filed 03/28/17 Page 6 of 33
Helena Horton, Muslim ban statement ‘removed’ from Donald Trump’s website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statementremoved-from-donald-trumps-website/. ....................................................................................5
Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/ ...............................................................................................................................5
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) ....................13
Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html ...................................................................................25
Louis Nelson, Trump on immigration order: Call it what you want — it’s about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trump-immigration-order-ban-no-ban234477........................................................................................................................................6
Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_b omb_plot.html ..........................................................................................................................24
Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kent-shooting-victim-sayshe-was-told-go-back-to-your-own-country/. ...........................................................................10
N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trumpforeign-policy.html?_r=0 ...........................................................................................................6
Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017)..............................................................................................................7
Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science (Nov. 26, 2004) ..........................................................................................................................................7
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)......................................................................................4
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/dhsmemo-contradict-travel-ban-trump/98374184/..................................................................22, 23
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Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004)........................................4
Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963) ......................................................................................................4
Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998) ...........................................2
TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddowshow/trms-exclusive-dhs-document-undermines-trump-case-travel-ban ................................23
Local Civil Rule 7(o) Statement Undersigned counsel confirm, pursuant to Local Civil Rule 7(o) and Rule 29(a)(4), Fed. R. App. P., that (i) no party’s counsel authored the brief in whole or in part; (ii) no party or party’s counsel’ contributed any money that was intended to fund preparing or submitting the brief; and (iii) no person, other than amici curiae, their members and their counsel, contributed money that was intended to fund preparing or submitting the brief.
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INTRODUCTION Amici, the American-Arab Anti-Discrimination Committee, the Center for Constitutional Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights, The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice, the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form. The amici respectfully submit this brief to advance two separate but related arguments. First, amici submit that the balance of equities and public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”), as it improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order targets a religious minority in a manner that demands that this Court apply strict scrutiny to the question of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, amici write separately to argue that, even if this court were to review the Executive Order under a “rational basis” test, the Order would still violate the Constitution’s equal protection guarantee. Regardless how the Government has sought to characterize or revise the Order after the fact, the evidence demonstrates that it is motivated by animus toward Muslims and those born in the targeted majority-Muslim countries, and not by any demonstrable national security concerns. This motivating animus is not a legitimate government end under any level of scrutiny. As such, the
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Executive Order is unconstitutional. I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES DANGEROUS
CONDITIONS FOR MEMBERS OF MINORITY GROUPS. A. Stereotyping Minority Groups Creates A Climate For Discrimination. The balance of equities and public interest in this case weighs in favor of enjoining the Executive Order due to the dangerous and discriminatory conditions it engenders. The courts have generally recognized that stereotyping of minority groups has a negative effect on individuals within those groups and creates a climate ripe for discrimination. Categorization, or social categorization, is the natural cognitive process by which people place individuals into particular social groups. Social categorization essentially has the effect of exaggerating between-group differences while minimizing within-group differences, thereby increasing perceived homogeneity within groups. Some categorization is “automatic,” but much categorization is built on social cues. “Stereotyping, prejudice, and discrimination clearly profit from context-driven processes such as categorization . . . .” Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998). In light of the extensive social science research on this subject, the Supreme Court has repeatedly stated that discriminatory stereotypes impact decision making. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (recognizing disparate impact liability in housing decisions to prevent segregated housing patterns that might otherwise result from the role of “covert and illicit stereotyping”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing the role that sex stereotyping played in employment discrimination case, explaining “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision), superseded by statute as
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stated in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability); accord Miller-El v. Dretke, 545 U.S. 231, 268 (2005) (“Subtle forms of bias are automatic, unconscious, and unintentional and escape notice, even the notice of those enacting the bias.”) (citations omitted). Further, the Court’s precedent outlines the negative effects that arise from stereotyping and social categorization. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (addressing Equal Protection claims relating to school integration efforts and recognizing harms traceable to “pernicious” racial classifications and school segregation).
The circuit courts also recognize that social categorization and stereotyping often create the conditions for discrimination in areas such as provision of housing, employment decisions, and police motivations. See Hassan v. City of New York, 804 F.3d, 306 (2d Cir. 2016) (rejecting “appeals to ‘common sense’” which “might be infected by stereotypes” as sufficient to justify police surveillance of Muslim individuals, business, and institutions) (quoting Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of “unlawful animus” in an employment discrimination case because “unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999)); United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury selection and the outcome of trials); Eastman Kodak Co., 183 F.3d 42 (holding Title VII’s ban on “disparate treatment because of race” includes “acts based on conscious racial
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animus and . . . employer decisions that are based on stereotyped thinking)); Gonzalez-Rivera v. INS, 22 F.3d 1441, 140 (9th Cir. 1994) (recognizing in police stop case that “officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so”).
Stereotyping of all kinds can be exacerbated through a psychological triggering phenomenon known as “priming.” Priming occurs when “subtle influences . . . . increase the ease with which certain information comes to mind.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness at 69 (2009). In the case of racial stereotyping, which shares many attributes with stereotyping of Muslims, priming an individual with race-based stereotypes can influence later decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004). Social science research repeatedly demonstrates that individuals have a persistent tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963). The connection between state sanctioned discrimination and private harm is clearest in the Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court recognized that discrimination with the sanction of law raises unique and particular dangers.
The Supreme Court very recently said that discriminatory harm can be heightened when it is officially legitimized. In Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), the Supreme Court held that the use of a defense expert in the sentencing phase of a capital trial to testify that African-Americans are more likely to commit violent crimes constituted ineffective assistance of counsel in violation of the Sixth Amendment. According to the Court, the effect of the racial stereotyping on the jury was “heightened due to the source of the testimony. [The expert] took
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the stand as a medical expert bearing the court’s imprimatur.” Id. at 777. B. The Executive Order Is Based On Stereotypes About Muslims And Arabs As “Anti-American” And “Terrorists.” As in the cases cited above, the Muslim ban bears the imprimatur of the Executive
Branch, engendering precisely the type of discriminatory harms that the Court has held cannot withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump issued a written statement calling for a “total and complete shutdown on Muslims entering the United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has been a major item on his policy agenda.1 At that time, his campaign explained that “there is great hatred towards Americans by large segments of the Muslim population.” He also characterized the need for a bar on Muslim and Arab entry into the United States as a way to stop our country from being the “victims of horrendous attacks by people that believe only in Jihad.”2 Before a single vote was cast, President Trump distinguished his campaign by expressly categorizing Muslims as “dangerous” and “terrorists.”
Mr. Trump’s categorization of Muslims has been ongoing. On January 4, 2016, the Trump campaign premiered its first television advertisement. That advertisement told viewers that Trump was “calling for a temporary shutdown of Muslims entering the United States” until doubts about “radical Islamic terrorism” can be “figure[d] out.”3 The link the President drew between “radical Islamic terrorism” and all individual Muslims entering the United States could not be more strongly established. Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that “the struggle against radical Islam also takes place in our 1 Helena Horton, Muslim ban statement 'removed' from Donald Trump's website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statement-removedfrom-donald-trumps-website/. 2 Id. 3 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
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homeland. . . . We must stop importing extremism through senseless immigration policies.”4 Again, through allusion to the individual Muslims entering the United States through legitimate means, Trump emphasized that he draws a connection between individual Muslims and the “struggle against radical Islam.”
Just one week after his Inauguration, President Trump acted to fulfill his campaign pledge and codify his campaign rhetoric. On January 27, 2017, he signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017). Among the immigration restrictions contained in Executive Order 13,769 was a temporary ban of all nationals from seven majority-Muslim countries from entering the United States: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. Section 1 of E.O. 13,769 explained that the Order is intended to ensure that the United States stays “vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
While many surrogates of the current Administration pushed back at the characterization of E.O. 13,769 as a “Muslim ban,” the President embraced it, which demonstrated his embrace of the social categorization of Muslims as “dangerous” and “terrorists.” He told the public via Twitter that “[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of country!”5 Throughout his campaign, and now in office, President Trump has voiced his view of Muslims as threats to national security.
After multiple courts enjoined enforcement of E.O. 13,769, the Trump Administration
4 N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html?_r=0. 5 Louis Nelson, Trump on immigration order: Call it what you want — it's about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trumpimmigration-order-ban-no-ban-234477.
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announced plans to make revisions to that order. On March 6, the Administration issued E.O. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). The revised Executive Order preserves several core provisions of the prior Order, including the suspension of the United States Refugee Admissions Program for 120 days, and the suspension of entry into the United States of nationals of six of the majority-Muslim countries designated in E.O. 13,769 for 90 days. See §§ 6(a); 2(c). Like E.O. 13769, the new Order targets only majority-Muslim countries.
This official action of marking a social group, Muslims, as a dangerous “fifth column,” only aggravates societal biases against Muslims and Arabs in this country. It creates conditions where violence against Muslims is seen as more acceptable because they are perceived stereotypically as “bad people.” A “sample of U.S. citizens on average viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially sincere, honest, friendly, or warm.” Susan T. Fiske, et al, Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science, 206, 1482-1483 (Nov. 26, 2004). More recent social science detailing the administration of “implicit association tests” demonstrates both the already-existing climate of prejudice against Muslims and Arabs and the unconscious nature of that bias: “Non-Arab and non-Muslim test takers manifested strong implicit bias against Muslims. These results are in sharp contrast to self-reported attitudes.” C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). In 2011, the Pew Research Center surveyed Western cultures to determine the characteristics they associate with people in the Muslim world. That survey found that about half of respondents characterized Muslims as “violent,” and more than half characterized Muslims as “fanatical.”6 The Executive Order exacerbates already
6 Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017).
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existing, but latent, stereotypes and prejudices against individual Muslims in the United States. C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. There can be no doubt that, given its origin and history, the Executive Order is based on
social categorization of Muslims as “anti-American,” “terrorists,” and those with “hatred for Americans.” In this case, President Trump’s repeated, unsubstantiated claims that Muslims are dangerous, and should be barred from entering the country, are just the “cue” needed to release other suppressed discrimination and violent beliefs held by those harboring ill will or unconscious bias against Muslims. The President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the immigration of Muslims and Arabs into the country, places an official “imprimatur” on those stereotypes, magnifying their effect.
When someone in a position of authority, as President Trump, categorizes Muslims as dangerous and terrorists, he creates the message that Muslims are “outsiders” and not full members of the political community. In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000), the Court found unconstitutional a school sponsored religious message, delivered over the school’s public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to a school policy. The Court’s reasoning was based on its view that the school policy created two classes of people—those who adhered to the favored religion, and those who did not. Id.
The President’s strong and consistent support of what he calls a “Muslim ban” similarly sends the message that those who adhere to Islam as their religion are not part of American society, as opposed to Christians and non-Muslims, who are favored by the ban. In doing so, he “send[s] a message to non-adherents [to the Christian faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are
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insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring). The Executive Order and the President’s statements characterize Muslims as homogenous and a national threat. The President’s demonization of Muslims engenders a climate conductive to violence against people seen as Muslims.
In the short aftermath of the Executive Order and its predecessor, E.O. 13,769, and their chaotic implementation, anti-Muslim hate crimes have flourished. The February 22, 2017 shootings of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as enemies of the American people. Kuchibhotla and Madasani, two engineers at a local technology company, and both Indian immigrants to the United States, had gathered with co-workers at a bar near their office to watch a local college basketball game. Also at that bar was Adam Purinton, a 51-year-old U.S. Army veteran who mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities categorized by the Executive Order and its predecessor as barred from entry into the United States). Purinton approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!” Kuchibhotla was killed, and Madasani was wounded, in the incident. Ian Grillot, a patrolman present at the scene, was wounded while attempting to intervene. Purinton fled across the state border into Missouri, telling a bartender in a second bar that he needed to hide out because he had just shot two Iranians. Putting aside Purinton’s stereotyped view that his victims were Iranians simply because they appeared to be foreign-born immigrants, his actions demonstrate the danger that social categorization can cause by exaggerating both the distance between in-groups (“real Americans”) and out-groups (“Iranians”), as well the homogeneity of the out-group. As the Southern Poverty Law Center described the Olathe violence, “shocking hate crimes” “emerge not from a vacuum, but always from an environment that encourages and
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fosters [that] kind of violence.”7 In addition, a rash of arsons and vandalism at mosques has plagued the United States
surrounding the issuance of E.O. 13,769. On January 27, 2017, the very date of the first order, a fire destroyed the Islamic Center of Victoria, Texas. On February 24, 2017, a blaze broke out in the entrance of the Daarus Salaam Mosque near Tampa, Florida. Combined with two arsons of mosques shortly before President Trump’s inauguration, the United States has seen a surge of hate crimes against the Muslim community that is unprecedented. A spokesperson at the Southern Poverty Law Center told reporters that “four mosques being burned within seven weeks of each other” was “part of a whole series of dramatic attacks on Muslims.”8
Other recent attacks on mosques in the United States include a rock thrown through a window of the Masjid Abu Bakr mosque in Denver, Colorado and vandals destroying the entrance sign at the Muslim Association of Puget Sound in Redmond, Washington. On March 5, 2017, a Sikh man was shot in his Kent, Washington driveway when a man approached him and said “go back to your own country.”9
Rather than incitement of crime and hatred, the public interest in this county is best served by tolerance of different religions as the Constitution requires, and tolerance of both foreign-born and American-born adherents of different religions. The insidious effect of the Muslim and Arab ban does not impact merely those persons seeking to enter the United States
7 David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99-%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 8 Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017-begins?utm_term=.rhx3bJRw6#.wcxEQDMKP. 9 Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kentshooting-victim-says-he-was-told-go-back-to-your-own-country/.
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from the six designated countries. By promoting malevolent social stereotypes and fueling violence against a minority, the Executive Order fundamentally threatens the American ideal of a diverse society made up of different of ethnic groups, races, and religions. II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT INTEREST Plaintiffs’ Motion for a Preliminary Injunction sets forth in detail why the Executive Order discriminates on the basis of national origin and religion and thus is subject to strict scrutiny review. See ECF No. 35. Amici agree with Plaintiffs that the Executive Order is properly subject to, and fails, strict scrutiny. Amici write separately to argue that, even if the Executive Order were reviewed under a more deferential standard for which Defendants presumably will advocate,10 the Order would still violate the Equal Protection Clause because it is motivated by an animus toward Muslims and those born in the targeted majority-Muslim countries, and has no rational relationship to any legitimate governmental purpose. A. Animus Towards A Particular Group Is Not A Legitimate Government
Interest. Strict scrutiny under the equal protection clause applies where the Government singles out a suspect class or interferes with the exercise of a fundamental right. Where strict scrutiny applies, the challenged law is presumed to be invalid, and will survive judicial review only if the Government can show that it is “narrowly tailored” to further “compelling governmental interests.” See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (citation and internal quotation marks omitted). In contrast, the rational basis standard treats governmental conduct as
10 In the related Washington v. Trump proceeding, Defendants argued that the Executive Order was actually not subject to any standard of review and was, in fact, unreviewable because it related to immigration and national security. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The Ninth Circuit rejected this argument noting that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Id. at 1162.
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presumptively valid, placing the burden on the challenger to prove that such conduct is not “rationally related to a legitimate state interest.” See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, the level of scrutiny is often a key factor in determining the outcome of an equal protection challenge to government action.
Government action fails even the more forgiving rational basis test, however, where it evinces animus directed against an unpopular group. As discussed below, where the history of a law reflects that it was motivated by animus against a particular class of people, the Court must give “careful consideration” to the government’s stated justification for the law. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). In such circumstances, courts will apply a more searching review to the stated justifications for the policy in order to determine whether the policy is, in fact, motivated by impermissible animus. In his concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Judge Holmes explored in depth the current state of what he called “animus” jurisprudence. Id. at 1097-103 (Holmes, J., concurring). He concluded that:
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. Id. at 1103; see Windsor v. United States, 699 F.3d 169, 180–81 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute”) (citation and internal quotation marks omitted); Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 691–93 (6th Cir. 2011) (noting that where Supreme Court found “that the legislation at issue was in fact intended to further an improper government objective,” it applied “rational basis with a bite”)
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(internal quotation marks omitted); Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983, 990–91 (D. Kan. 1985) (“In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required.”).11
Because animus is not a legitimate government interest, a long line of Supreme Court precedent holds that laws motivated by animus are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment (if enacted by state or local governments) and/or the Due Process Clause of the Fifth Amendment (if enacted by the federal government).
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court considered a Fourteenth Amendment challenge to a Texas statute that both denied state funding for the education of children not “legally admitted” into the United States and authorized school districts to deny enrollment to such children. The Court recognized that undocumented aliens did not constitute a suspect class, and that public schooling was not a Constitutional right.12 Nonetheless, in recognition of the seminal role that education occupies in the nation’s political and cultural heritage, and in the development of productive contributors to American society, the Court held that denying education to the entire class of undocumented alien children would be rational only if it furthered some substantial state goal. The Court then carefully reviewed the State’s purported bases for the legislation, which included deterring unlawful immigration, avoiding “special burdens” on the State’s educational system allegedly created by undocumented alien
11 See also Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne, Moreno, and Romer “depart[s] from the usual deference associated with rational basis review” and “commentators have correctly discerned a new rational basis with bite standard in such cases”). 12 The Supreme Court has recognized four suspect classes: race, religion, nationality, and alienage. The Court has also recognized two quasi-suspect classes—gender and illegitimacy—to which it applies a level of review known as intermediate scrutiny. See, e.g., Cleburne, 473 U.S. at 440-41.
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students, and refusing public education to a class of children deemed less likely to remain in the State and therefore make productive use of that education. Finding that the legislation would not meaningfully further any of these goals, and that a desire to punish children was not a legitimate government interest, the Court struck down as irrational a law that promoted “the creation and perpetuation of a subclass of illiterates within our boundaries.” Id. at 220, 230.
In Cleburne, the Court struck down a zoning ordinance that required special use permits for homes for individuals with Down syndrome, while not requiring such permits for various other residential facilities, including apartment houses, multi-family dwellings, boarding houses, and fraternity and sorority houses. The Court declined to treat those with an intellectual disability as a suspect or quasi-suspect class, and so applied rational basis review. However, the Court conducted a searching review of the stated reasons for the ordinance, and concluded that none of them provided any legitimate basis for differential treatment of the affected group.
One of the City’s purported justifications for the permit requirement was concern about “negative attitudes” of neighbors living close to a facility for the mentally disabled, and “fears” of elderly residents in the community. In finding that this stated justification lacked a rational basis, the Court noted that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for people with mental disabilities differently from apartment houses, multiple dwellings, and the like.” Id. at 448. Of particular relevance here, the Court stated that the Government “may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. Finding no evidence that the ordinance was rationally related to the objectives urged by the City, the Court concluded that “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Id. at 450.
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In Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated an amendment to the Colorado state constitution that nullified state laws prohibiting discrimination against same-sex couples. Because the Court did not view sexual orientation as either a suspect or quasi-suspect class, it once again applied rational basis scrutiny. The Court noted, however, the almost unprecedented nature of the challenged law in specifically targeting a particular class of individuals:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. As the Court observed, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Id. The demand that “the classification bear a rational relationship to an independent and legitimate legislative end” serves to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 632-33. The Court observed that “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” and that a law denying one group of citizens the ability “to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633. Accordingly, the Court held that the amendment was “inexplicable by anything but animus toward the class it affects,” and, as such, “lack[ed] a rational relationship to legitimate state interests.” Id. at 632. The Court has also struck down federal legislation targeted at particular groups as violative of the principles of equal protection incorporated into the Fifth Amendment’s Due
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Process Clause. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Supreme Court found that a provision of the Food Stamp Act, which excluded from participation
any household that contained an individual unrelated to any other member of the household, was
passed to prevent hippies and hippie communes from participating in the program. The group
adversely affected by the legislation—hippies—was not a “suspect class” to which strict scrutiny
would be applied. Thus, the Supreme Court applied rational basis scrutiny to the challenged
provision. It nonetheless struck it down, reasoning that:
if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, a purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the [classification].
Id. at 534-35 (citation omitted). The Court recognized that, while “[t]raditional equal protection
analysis does not require that every classification be drawn with precise ‘mathematical nicety,’”
the classification before it was “not only ‘imprecise’, it is wholly without any rational basis.” Id.
at 538.
Most recently, in striking down the Defense of Marriage Act (“DOMA”), the Supreme
Court held that “[i]n determining whether a law is motived by an improper animus or purpose,
‘[d]iscriminations of an unusual character’ especially require careful consideration.” Windsor,
133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The Court went on to state:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.
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Id. at 2693. After reviewing the history of DOMA’s enactment, the text of the statute, and its far-ranging adverse impacts on same-sex married couples, the Court found it violated the Equal Protection Clause because “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695.
B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest.
Here, the record establishes that, just like the laws in Moreno, Plyler, Cleburne, Romer, and Windsor, the Executive Order was motivated by an impermissible animus against particular classes of individuals, and thus violates the most fundamental principles of equal protection.
First, as noted in Plaintiffs’ Brief, the Executive Order restricts entry into the country and/or travel outside the country of individuals based solely on their national origin. Accordingly, even applying “the most deferential of [equal protection] standards,” the Order’s targeting of individuals from the identified countries would be permissible only if there exists a “relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632.
Second, although national origin distinctions may not seem as overtly pernicious in the area of immigration regulation, the background to the Executive Order reflects that the use of national origin designations was a surrogate for targeting individuals practicing the Muslim faith. As noted earlier, while a candidate, President Trump advocated for a complete bar on Muslims entering the United States. See Aziz v. Trump, No. No. 1:17-CV-116-(LMB/TCB), 2017 WL 580855, at *4 (E.D. Va. Feb. 13, 2017). After receiving pushback concerning the legality of his proposed Muslim Ban, then-candidate Trump telegraphed that, in order to accomplish his objective of banning Muslims while potentially subverting judicial review, he would use territories that were predominately Muslim as a surrogate for targeting Muslims directly. In
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response to a question about whether he had changed his position that Muslims should be banned, Trump stated “call it whatever you want. We’ll call it territories, OK?” Aziz, 2017 WL 580855, at *4; see also Amended Compl. ¶ 59 (“People were so upset when I used the [word] Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim”) (citing Meet the Press, NBC, July 24, 2016.) (internal quotation marks omitted).
President Trump signed Executive Order No. 13,769 on January 27, 2017. Soon thereafter, Rudy Giuliani, who advised the Trump Campaign, admitted that it was meant to effectuate the Muslim ban while circumventing judicial scrutiny. Amended Compl. ¶ 69 (“So when [Mr. Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”) (internal quotation marks omitted). In fact, hours before signing Executive Order No. 13,769, President Trump had belied its “territorial,” non-religious focus by publically stating that Christians from the seven impacted nations would be given priority as refugees. Id. at ¶ 68; see also Aziz, 2017 WL 580855, at *4. This unapologetically transparent record of the invidious motivation behind the Executive Order undermines the Government’s post hoc efforts to attribute a lawful purpose to its action.
As U.S. District Judge Brinkema of the Eastern District of Virginia concluded in enjoining the original Executive Order as violative of the establishment clause, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Aziz, 2017 WL 580855, at *8. The Court thus found that there was “direct evidence” that the Executive Order was an attempt to find a legal way to impose a ban on Muslims entering the United States. Id. at *9. The Government, however, cannot evade the strictures of the
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Constitution merely by “deferring to the wishes or objections of some fraction of the body politic.” Cleburne, 473 U.S. at 448.
After multiple courts, including the Eastern District of Virginia, stayed or preliminarily enjoined the first iteration of the order, President Trump signed the revised version that is now before the Court. Although the Executive Order at issue here eliminates some of the more egregious provisions of the prior order (e.g., it no longer applies to lawful permanent United States residents), it continues to be the means for implementing the anti-Muslim animus that gave rise to the first order. It still targets only Muslim-majority countries, and contains no legitimate justification for suspending entry into the United States of those born in those countries. In fact, Stephen Miller, a senior advisor to President Trump, declared that the Executive Order contains only “minor technical differences” from the prior order in an attempt to respond to the “flawed” and “erroneous” judicial rulings striking the first order down, and that it will “fundamentally have the same policy outcome for the country.”13
It is therefore hardly surprising that the Federal District Courts of both Hawai‘i and Maryland have concluded that the new Executive Order remains motivated by impermissible animus towards Muslims. See Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *13 (D. Haw. Mar. 15, 2017) (analyzing statements of President Trump and his administration and determining that the current Executive Order remained motivated by “religious animus”); accord Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1018235, at *13 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17,
13 Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-ban-willhave-same-basic-policy-outcome.html.
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2017).14 The Hawai‘i court in particular found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Hawai‘i, 2017 WL 1011673, at *13.
President Trump campaigned on a promise that he would institute a “Muslim Ban,” and both he and his advisors have publically stated that the Executive Order is an attempt to accomplish that ban while subverting the courts’ ability to subject it to Constitutional review. This Court should take the President and his advisors at their word. Cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 865-66 (2005) (in affirming the relevance of the background to and history of challenged legislation, the Court noted that “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions . . . .”).
C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims
Given the clear animus towards Muslims that gave rise to the Executive Order, the Supreme Court’s jurisprudence would require careful judicial examination of the stated justification for the Order, safeguarding national security, even if the Court determined that, as an executive action regarding immigration, the Executive Order is subject to rational basis review. That the Government’s justification for this policy is national security does not lessen this Court’s duty to ensure the policy is constitutional. Washington, 847 F.3d at 1163 (“[F]ederal courts routinely review the constitutionality of—and even invalidate—actions taken by the
14 In striking down the Executive Order as violative of the Establishment Clause, neither court reached the question of whether the Executive Order also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
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executive to promote national security, and have done so even in times of conflict.”).15 Any meaningful review demonstrates that the purported national security justification for the Executive Order is merely a pretext for anti-Muslim animus.
The Executive Order suspends immigrant and refugee entry into the United States of aliens from Syria, Iran, Libya, Sudan, Yemen, and Somalia for 90 days. Section 1 of the Order is titled “Policy and Purpose.” There, it states that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.” Executive Order, Section 1(h). Remarkably, the Executive Order then identifies only one such individual who was born in any of the affected countries.16 It goes on to state that “[t]he Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” However, the Executive Order makes no effort to tie these general claims about terrorism to the specific Muslim-majority countries on the Executive Order. Nor does the Executive Order afford a breakdown of whether these persons have actually committed terrorist acts, as opposed to merely having been the subject of investigations.
In fact, since 1975, not a single American has been killed in a terrorist attack by a person born in any of the six countries.17 The impacted countries also are unrelated to terrorism-related
15 See also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”) 16The Order also identifies two individuals from Iraq, a country not subject to the blanket prohibitions contained in the revised Order. 17 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumpsexecutive-order-limit-migration-national-security-reasons.
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arrests. For instance, not a single immigrant from Libya or Syria, two countries targeted by the Executive Order, was arrested on terrorism charges between 1975 and 2015. In contrast, nine immigrants from Croatia and eleven from Cuba, two countries unaffected by the Executive Order, were arrested on terrorism related charges in that timespan.18
Nor can the Executive Order’s singling out of the designated Muslim countries be justified, as Section 1(d) purports to do, by citing their supposedly questionable vetting procedures for immigrants. In a March 6, 2017 interview with CNN, Secretary of Homeland Security John Kelly admitted that there are an additional “13 or 14 countries, not all of them Muslim countries, not all of them in the Middle East, that have questionable vetting procedures . . . .”19 Once again, the Government merely uses these vetting procedures as a pretext for a law targeted at Muslims. The Executive Order simply does not contain a shred of factual support for a broad sweeping travel ban against natives of the particular identified countries.
To the contrary, recently publicized documents from the Department of Homeland Security contradict the security justification for the Executive Order. In fact, one document is titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States.”20 In analyzing terrorist attacks since 2011, it finds no relationship between those attacks and citizenship:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals . . . died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization . . . . Of the 82 individuals we
18 Id. 19 Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kellytravel-ban-muslim-countries/. 20 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-contradict-travel-bantrump/98374184/.
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identified, slightly more than half were native-born United States citizens. Of the foreign born individuals, they came from 26 countries, with no one country representing more than 13.5 percent of the foreign-born total.21
The report further finds that “[r]elatively few citizens of the seven countries impacted by
[Executive Order 13,769], compared to neighboring countries, maintain access to the United
States,” and that “[f]ew of the [i]mpacted [c]ountries [h]ave [t]errorist [g]roups that [t]hreaten the
West.”22
Another memorandum from the Department of Homeland Security undercuts the other
purported justification for Executive Order, the need to enhance screening procedures for
individuals traveling from the six targeted countries. The Department of Homeland Security
memorandum questions the link between screening practices in general and preventing terrorism.
It concludes that:
We assess that most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns. We base this assessment on our findings that nearly half of the foreign-born, US-based violent extremists examined in our dataset were less than 16 years old when they entered the country and that the majority of foreign-born individuals resided in the United States for more than 10 years before their indictment or death. A separate DHS study that found that recent foreign-born US violent extremists began radicalizing, on average, 13 years after their entry to the United States further supports our assessment.23
In fact, the Executive Order’s reference to terrorist activities by the lone native of an affected
country—a Somalian refugee convicted on terrorism charges—proves the point. Executive
Order, Section 1(h). Mohamed Osman Mohamud came to the United States as a child refugee at
21 Id. at 1. 22 Id. at 2. 23 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-documentundermines-trump-case-travel-ban.
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the age of five; however, his arrest on terrorist-related charges occurred when he was 19-years old.24 As the Department of Homeland Security memorandum notes, “screening and vetting
officials” are not likely to be able to account for radicalization that occurs 14 years after entry.
Taken together, these Department of Homeland Security memoranda demonstrate the
pretextual nature of the national security justification for imposing an immigration ban on these
six Muslim-majority nations. The Department of Homeland Security does not find citizenship to
be a likely indicator of future terrorist activity and does not find enhanced screening procedures
to be an effective method of preventing terrorists from entering the country. Thus, an Order that
imposes an immigration ban on the basis of citizenship (as a pretext for religion) in order to
enhance future screening processes flies in the face of the assessment of the very government
agency charged with protecting national security from terrorist threats.
National security experts also concur that the Executive Order is not rationally related to
national security. In Aziz, the court preliminarily enjoined Executive Order 13,679 and, in doing
so, credited a declaration from 10 national security professionals who did not believe that the
Executive Order was related to any security interest. They stated:
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Aziz, 2017 WL 580855, at *3. Following the issuance of the new Executive Order, more than
130 members of American’s foreign policy establishment have issued a letter publically 24 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_bomb_plot.html.
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denouncing the travel ban as damaging to national security.25 The authors of the letter, who include former Secretaries of State John Kerry and Madeline Albright, conclude:
The revised executive order will jeopardize our relationships with allies and partners on who we rely for vital counterterrorism cooperation and information-sharing. To Muslims—including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision.26 In sum, although passed under the pretext of national security, the Executive Order does not bear any rational relationship to concerns about national security or any other legitimate government interests. Instead, as was clear by the President’s statements prior to his signing the Order, it is motivated by religious animus towards Muslims. Such a law cannot be allowed to stand in our society. As the Moreno Court recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534-45. III. CONCLUSION For the foregoing reasons, the Court should grant the requested injunction against implementation of the Executive Order.
25 Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html. 26 Id.
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DATED: March 28, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) bernabei@bernabeipllc.com Alan R. Kabat (Bar No. 464258) kabat@bernabeipllc.com Christopher Sousa (Bar No. 1018547) sousa@bernabeipllc.com BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

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 Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 1 of 45
UNITED STATES DISRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER,

)

IRANIAN AMERICAN BAR

)

ASSOCIATlON, et al

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, etal

)

)

Defendants

)

No. 17 cv 255(TSC)

RAISING POLITICAL QUESTION NONJUSTICIABILITY, AMICUS CURIAE BRIEF FROM PROFESSOR VICTOR WILLIAMS,
OF THE AMERICA FIRST LAWYERS ASSOCATION, IN SUPPORT OF PRESIDENT DONALD TRUMP
Victor Williams, Appearing Pro Se
America First Lawyers Association www .americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 2 of 45
CERTIFICATE AS TO PARTIES & RELATED CASES A. Parties and Amici. All parties, interveners, and amici appearing in this Court are listed in party briefing except that this brief is filed on behalf of Professor Victor Williams in support of Defendants. B. Related Cases. Other related cases of which Amicus is aware are referenced in the briefing offered by parties.
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com
ii

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 3 of 45

TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings and Related Cases .....................................ii Table of Contents ........................................................................... .iii Table of Authorities ......................................................................iv,v,vi Statement of Authorship and Financial Contribution.......................................vii Statement of Identity, Interest and Authority of Amicus ............................... .1-4 Argument................................................................................... 5-35 Certificate of Service........................................................................36

111

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 4 of 45

Cases:

TABLE OF AUTHORITIES

Page(s)

Alaska v. Kerry, 972 F. Supp. 1111 (D. Alaska 2013) ..................................23

Aktepe v. United States: 705 F.3d 1400 (11th Cir. 1997) ................................ 19 Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990)................................28

Baker v. Carr, 369, U.S. 186 (1962)................................................24,25,27

Boumediene v. Bush, 553 US 723 (2008) ................................................29

Chicago & Southern Airlines v. Waterman 333 U.S. 103 (1948)...................... 8 Ctr.for Biological Diversity v. Hagel, 80 F. Supp. 991 (N.D. Cal. 2016) .........23

DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973) ....................................... 9

El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc) ........... 13,14,33

Goldwater v. Carter, 44 U.S. 996 (1979) ............................................ 29,30

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ...................................... 16 Jaber v. United States, 2016 WL 706183 (D.D.C. Feb. 22, 2016) ................. 13,14 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) ............................................ 7

Landon v. Plasencia, 459 U.S. 32 (1982) .................................................7.

Legal Assistance for Vietnamese Asylum Seekers v. Dep 't ofState, Bureau ofConsular Affairs, 104 F.3d 1349 (D.C. Cir. 1997) ....................... 27,28

Lowry v. Regan, 676 F. Supp. 333 (D.D.C. 1987)......................................27

Marbury v. Madison, 5 U.S. 137 (1803) ..................................................20,24,34
Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016) ..............................................................................7,8,11, 23

IV

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Cases:

TABLE OF AUTHORITIES (continued)

Page(s)

McCleskey v. Kemp, 481 U.S. 279 (1987) .............................................. 19, 29

Miami Nation ofIndians v.Interior, 255 F.3d 342 (7th Cir. 2001) ............... 19,20

Nixon v. United States, 506 U.S. 224 (1993) ........................................ 27,28

Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)..............................31,32

Detjen v. Central Leather Co., 246 U.S. 297 (1918) ....................................24

Rasul v. Bush, 542 U.S. 446 (2004) .......................................................28

Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988)........................................9,27

Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) .................................25

United States v. Verdugo- Urquidez, 494 U.S. 259,269 (1990) ....................... 19,28

YickWov. Hopkins, 118 U.S. 356,369 (1886) .......................................... .29

Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012) ............................. 12,13,21,22,23

Constitutions/Statutes/Executive Orders

Page(s):

U.S. Const.

art. II, § 1 .........................................................................................23

art. II, § 2 .............................................................................................................7,23

amend. XII,§ 1 ............................................................................34

Exec. Order No. 13780 (March 6, 2017) (titled: Protecting the Nation from Foreign Terrorist Entry into the United States) ............................. .11,16,17,18

v

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TABLE OF AUTHORITIES (continued)

Other

Page(s):

Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale 1986) .................................................. 31 ,32
Mathew Boyle, Senate-Committee: 580 Terror Convictions Since 2001, BREITBARTNEWS, June 22, 2016http://www.breitbart.com/biggovemment/20 16/06/22/senate-committee-580-terror-convictions-in-u-s-since911-380-terrorists-are-foreign-born/.................................................... 16, 17
Stephen Dinan, Trump Says Extreme Vetting Pause Is Same as Obama 's 2011 Iraq Policy, WASH. TIMES, Jan. 29,2017, http://www.washingtontimes.com/news/20 17/j an/29/trump-says-extreme-vettingpause-same-obatnas-20 11-/.......................................................................................6

Stephen Dinan, Somali/and Pleads To Be Removedfrom Trump's Extreme Vetting List, WASH. TIMES, Mar. 9, 2017, http://www.washingtontimes.com/news/20 17/mar/9/somalia-pleads-be-removedextreme-vetting-list/ ........................................................................ 11

Alexander Hamilton, No. 23: The Necessity ofa Government as Energetic as the One Proposed to the Preservation ofthe Union, in Clinton Rossiter, ed., THE FEDERALIST PAPERS (New York: Mentor, 1999) .........................................24
Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMES, July 4, 2016 ....3

Nan Levinson, WAR IS NOT A GAME: THE NEW ANTIWAR SOLDIERS AND THE MOVEMENT THEY CREATED (Rutgers 2014) ...............................................5

Speech of the Honorable John Marshall (Mar. 7, 1800)(cited by The Political Question Doctrine and the Supreme Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.)(2007) .............................. 20

Joseph R. Nye, Get Smart: Combining Hard and Soft Power 88 FOREIGN AFFAIRS 160 (2009), http://www.jstor.org/stable/20699631 ................................................ 10

VI

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 7 of 45

TABLE OF AUTHORITIES (continued)

Other

Page(s):

Debra Weiss, Law Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL, April 11, 2016, http://www.abajoumal.com/news/article/law prof enters gop presidential race t o challenge ted c1uzs eligibility/ .......................................................2

Pete Williams, Law Professor Challenges Cruz on Citizenship, Candidacy, NBC NEWS, April11, 2016. http://www.nbcnews.com/news/us-news/law-professorcandidate-challenges-cruz-citizenship-n554046. ........................................3

Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- FORUM, Feb.15, 2017, http://jurist.org/forum/20 17/02/Victor-Williams-travel-ban.php .......................... 15

Victor Williams, D. C. Law Professor Makes Case for Sessions ' Senate Confirmation, STREET INSIDER, Jan. 9, 2017, http://markets.financialcontent.com/streetinsider/news/read/3355 5004 ..................3

Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth, THE HILL, Nov. 6, 2016. http:l/thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic ...............3

Victor Williams, Law Professor Now Proudly in Basket ofDeplorables, THE HILL, Sept. 20, 2016, http:l/thehill.com/blogs/pundits-blog/presidentialcampaign/296783-law-prof-once-an-obama-supporter-now-in-basket-of ...............3

Vll

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 8 of 45
STATEMENT OF AUTHORSHIP, LENGTH, AND FINANCIAL CONTRIBUTION
This brief is offered by Amicus as an individual. Institutional affiliation is offered only for informational purposes. It is presented in 14 point, New Times Roman font with Argument section totaling 7182 words. No party's counsel authored this brief in whole or in part, and no party, nor other person, contributed money intended to fund the preparation or submission of this brief.
Vlll

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 9 of 45
BLANK
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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 10 of 45
STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF AMICUS
Plaintiffs have consented to, and Defendants do not oppose, the attached Motion respectfully seeking leave of the Court to file this amicus curiae brief. Appealing to the Court's broad discretion to allow such a filing, Amicus avers his significant interest in this case and suggests that the proffered brief will be of unique assistance to the Court. Professor Victor Williams is a Washington, D.C. attorney and law professor with over twenty years' experience -- formerly affiliated as fulltime faculty with both the Catholic University of America's Columbus School of Law and the City University ofNew York's John Jay College of Criminal Justice. Professor Williams has particular knowledge and expertise regarding the text, history, and interpretation of Article II and Article III of the U.S. Constitution with many scholarly and popular publications. He earned his J.D. from the University of California-Hastings College ofthe Law. After completing an externship with both Ninth Circuit Judge Joseph Sneed and Eleventh Circuit Judge Gerald Bard Tjoflat and a two-year clerkship with Judge Brevard Hand of the Southern District of Alabama, Williams did advanced training in federal jurisdiction and international law (LL.M.) from Columbia University's School of Law and in economic analysis of the law (LL.M.) from George Mason University's Scalia School of Law.
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In past, Professor Victor Williams has been granted leave to file amicus briefs in other lower courts as well as by the U.S. Supreme Court. Professor Williams has published scholarship and commentary that offered strong support for the constitutional discretion and prerogatives of the past four presidents (without regard to their party affiliation). Professor Williams zealously advocated for timely Senate confirmation of the judicial and executive nominees of both George W. Bush and Barack Obama. Although these past presidents often pursued policy ends at odds with Professor Williams' personal policy preferences, he continued to defend their constitutional authority.
But now, Professor Williams' acknowledges that his ultimate policy preference to always "put America first" is clearly reflected in President Trump's agenda and early actions. Williams was an early primary supporter of candidate Donald Trump. In spring 2016, Williams launched a widely-reported legal action, after obtaining "competitor candidate standing" as a write-in candidate in several late primary states, to challenge the ballot eligibility of (naturally-born Canadian) Ted Cruz. (www.victorwilliamsforpresident.com). See e.g., Debra Weiss, Law Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL, April 11, 2016, http://www.abajoumal.com/news/article/law prof enters gop presidential race t o challenge ted cruzs eligibility/ and Pete Williams, Law Professor Challenges
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Cruz on Citizenship, Candidacy, NBC NEWS, April11, 2016, http://www.nbcnews.com/news/us-news/law-professor-candidate-challenges-cruzcitizenship-n554046.
After Senator Cruz withdrew from the GOP primary, Professor Williams also withdrew from the primary race, formerly endorsed Donald Trump, and founded Super PAC (GOP Lawyers) rallying Lawyers and Law Professors (www.goplawyers.com) to support Donald Trump in the general election. See Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth, THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic, Victor Williams, Law Professor Now Proudly in Basket ofDeplorables, THE HILL, Sept. 20, 2016, http:l/thehill.com/blogs/pundits-blog/presidential-campaign/296783-lawprof-once-an-obama-supporter-now-in-basket-of, and Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMES, July 4, 2016.
The campaign group has now transformed into the "America First Lawyers Association" (www.americafirstlawyers.com) which Professor Williams chairs, to advance the Trump administration's "America first" nominations, policies, and programs. See e.g. Victor Williams, D. C. Law Professor Makes Case for Sessions' Senate Corifirmation, STREET INSIDER, Jan. 9, 2017, http:l/markets.financialcontent.com/streetinsider/news/read/33555004
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Amicus submits that the proffered brief will make a valuable contribution to the existing briefing in this case as it presents an alternatively focused theory asserting that the claims against the president's travel freeze raise a nonjusticiable political question- thus this Court does not have subject matter jurisdiction.
Submitted on March 13, 2017
vi;;t.#//.w, t li s,
Al}F"~ roSe Airica First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail. com
4

Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 14 of 45
ARGUMENT
While supporting the Defendants' arguments, Amicus submits an alternative theory: This action is due for immediate dismissal as it presents a nonjusticiable political question. Amicus first acknowledges, however, the emotionallycompelling narratives regarding the aliens at issue in the instant action and in related cases filed throughout the nation. The aliens seeking entry onto American soil come from nations beset with evil oppression, state-sponsored terrorism, violent domestic disorder, and religious civil wars. Adequate reasons are presented to explain the aliens' desired entry; often involving being reunited with loved ones. Yet, these aliens seek entry into America as our nation continues to be in a prolonged war with radical terrorists, many of whom have come from those very same nations. Since September 11, 2001, over 40 terrorists from the six listed nations, are among 380 foreign-born terrorists, who have been charged, tried, and convicted of terrorist acts in the United States. Our new president instituted the travel freeze both to better prosecute this war on terror and to fundamentally shift American foreign policy related to the war. Although no salve for those who suffer, William Tecumseh Sherman's missive applies: "I am sick and tired of war. Its glory is all moonshine ....War is hell." Nan Levinson, WAR IS NOT AGAME: THE NEW ANTIWAR SOLDIERS AND THE MOVEMENT THEY CREATED 13 (Rutgers 2014).
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Just as did Barack Obama for eight years, our new president is engaging in a delicate national security and foreign policy calculus as he begins to prosecute the unprecedented, prolonged war with terrorists from these six nations and other nations of the region. Stephen Dinan, Trump Says Extreme Vetting Pause Is Same as Obama's 2011 Iraq Policy, WASH. TIMES, Jan. 29,2017, http://www.washingtontimes.com/news/20 17/jan/29/trump-says-extreme-vettingpause-same-obamas-20 11-/.
As a matter of first-order determination, this Court is barred from making an inquiry into the Executive Branch's war-prosecution calculus. Assertion that such an inquiry is necessary for the Court to conduct a second-order immigration statute interpretation and/or Administrative Procedure Act (APA) immigration process analysis does not make that inquiry or the controversy justiciable. Assertion of specious claims from American citizens, businesses, or sovereign States, that they suffer tangent harm from the implementation of the travel freeze, or equally specious claims of broad due process, equal protection, and religious discrimination violations arising from the travel freeze, do not make this controversy justiciable. This Court must immediately dismiss the instant action (and all related pending and subsequent actions) raising such claims.
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In various factual contexts, the Supreme Court has repeatedly ruled: "[A]n alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32 (1982). In implementing the travel freeze, President Trump acts within his inherent and exclusive Article II, § 2 authorities as Commander-in-Chief during a time of war.
The president acts with an authority that the Supreme Court recognizes as "inherent in [the nation's] sovereignty, necessary for maintaining normal international relations and defending the country against foregin encroachments and dangers -- a power to be exercised exclusively by the political branches of government." Kleindienstv. Mandel, 408 U.S. 753, 765 (1972) (quotation marks omitted); accord Knauffv. Shaughnessy, 338 U.S. 537, 542 (1950).
In its 2016 Mobarez v. Kerry ruling, the District Court for the District of Columbia explained that it could not review just such a decision by Barack Obama which the president made in a diplomatic, foreign policy, and military context. When deciding to shutter the U.S. Embassy in Yemen, President Obama refused to facilitate the exit and safe travels of American citizens from the horrific conditions in Yemen back to American soil. The court refused to reach the plaintiffs' requested statutory interpretation and APA process analysis that supported their
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right to such travel assistance because such interpretation, inquiry, and analysis would have required the court to answer a political question:
But the question that Plaintiffs' APA claim poses is not just what these provisions mean; it is also whether, if they mean what Plaintiffs say they mean, the Executive has violated the mandate that these provisions establish, and it is that aspect of the court's inquiry that would necessarily require the court to answer a non-justiciable political question.... Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016). The court would not second guess the president's admittedly-strange decision not to help America's own citizen travel back to America.
Associate Justice Robert Jackson in Chicago & Southern Airlines v. Waterman long ago recognized that foreign policy decisions "are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil." 333 U.S. 103 Ill (1948). Justice Jackson further emphasized that such "decisions are of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." !d.
Amicus respectfully asserts that in the instant action the Court will find no judicially manageable standards by which it can endeavor to assess our newlyelected president's interpretation of classified and military intelligence and his
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resulting decision -- based on that intelligence -- to freeze entry of aliens from listed nations. See DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973) and Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988).
If the freeze is not implemented, this Court is not competent to assess the nature and fiscal costs of alternative national security measures that may be required to try to keep track of aliens allowed to enter from the listed nations. This Court is not competent to foresee the unintended national security consequences of such judicial interference with the president's prosecution ofthe war on terror. This Court is not competent to understand the foreign relations implications from the Court's invalidation of the travel freeze and its purposeful messaging to allies and enemies of the new president's "America first" foreign policy.
The travel freeze is implemented as a matter of the president's war-strategy, national-security, and foreign-policy calculus- and not as a matter of ordinary immigration procedure or immigration law enforcement. The president's calculus that led to the immediate travel freeze also includes longer-term policy objectives. The travel freeze has purposes beyond the most important one of restricting alien entry from war-torn and terror-supporting nations. Other objectives are many and layered - with only some being patent.
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But obviously, the new president sends a strong war-related policy signal
to all nations-- "friends and foe alike"-- regarding his "America first" foreign
policy shift first formally announced in his Inaugural Address. The travel freeze cues our NATO allies to reconsider their own porous national borders. The
European nations' irresponsible failure to maintain their own sovereign borders has led to deadly terrorist acts and generally violent public spaces. Alien terrorists and would-be terrorist thugs who have been welcomed into Europe by its naive leaders
now stand in European airports only a seven-hour direct flight away from the
United States.
The freeze also directly confronts and disrupts expectations of wealthy
monarchs and potentates of the Middle East. Those oil-rich kingdoms have long expected America to "pay any price, bear any burden" to deal with their own region's hellish disorder. 1
1 One might hope that the travel freeze is the beginning of a disruptive application of an "America first" version of "smart power" theories; a disruptive move appropriate to this unusual, prolonged war. (For a traditional articulation of smart power theory, see Joseph R. Nye: Get Smart: Combining Hard and Soft Power 88 FOREIGN AFFAIRS 160 (2009)). Amicus certainly hopes that the travel freeze is the beginning of a correction in the government's over-reliance on a tired "carrot and stick" foreign-policy. As a part of a broader "America first" construct, perhaps the new policy will reject the wasteful acts of recent presidents who have spent endless American-tax-dollar "carrots" in foreign aid to ungrateful regimes. The same presidents have made even more shameful payments of brave military personnel used up like just so many "sticks" thrown into the Middle Eastern desert.
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All nations of the world-- including our allies in Europe and our "frenemies" in the Middle East -- have been given explicit notice that at any point in future the travel freeze list may expand to include "the names of any additional countries recommended for similar treatment, as well as [to contract to remove] the names of any countries that ... should be removed from the scope of a proclamation." Exec. Order No. 13780 (March 6, 2017). Indeed, Iraq was able to reform its vetting cooperation so as not to be included in the March 6, 2017 list. See Stephen Dinan, Somaliland Pleads To Be Removedfrom Trump's Extreme Vetting List, WASH. TIMES, Mar. 9, 2017, http://www.washingtontimes.com/news/2017/mar/9/somalia-pleads-be-removedextreme-vetting-list/.
Again, in its 2016 Mobarez v. Kerry ruling, the District Court for the District of Columbia recognized that it did not have jurisdiction to review President Obama's inherent and exclusive authority in matters of war strategy, national security, and foreign policy. Finding political question nonjusticiability, the court refused to examine statutory and APA based challenges to the Executive's decision to close the U.S. Embassy in Yemen without providing an exit strategy and travel arrangement for American citizens living in Yemen to safely return to American soil. Notwithstanding the compelling claims of American citizens (many who were Muslim in faith practice) that a federal statute
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and APA processes required that the president ensure their travel security, the Court refused to review the case. The ruling acknowledged that the court did not have the institutional competence or critical information required to judge the dangerous conditions in Yemen - and thus it refused to second guess the president's refusal to provide evacuation processes when closing the embassy. Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016).
Similarly, in the instant case, the president has determined that the dangerous, violent, and absurdly chaotic conditions exist in Yemen and other listed nations are such that the Executive Branch must freeze travel by aliens from those nations. Amicus respectfully asserts that just as the judiciary may not second guess the president's refusal to provide for embassy evacuations of American citizens out of Yemen, neither should it second guess the new president's refusal to allow embassy/consular processing of visa applications for aliens in Yemen and other of the listed nations. In accessing that perpetually violent region of the world, this Court does not have better institutional competence, or better military strategy, or better classified information than does the Executive Branch.
In Mobarez, the court used Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012), to explain why political-question abstention, notwithstanding the American-citizen plaintiffs' reliance on a federal statute, executive order, and memorandum of understanding, was required:
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When deciding the claim merely requires the court to engage in garden-variety statutory analysis and constitutional reasoning, [the court] has authority to do so (i.e., the claim is justiciable), but a claim that goes beyond those classically judicial functions to request that a court override discretionary foreign-policy decisions that the political branches have made-however framed-falls within the heartland of the political-question doctrine....
In the final analysis, then, this Court concludes that Plaintiffs' claims would necessarily require the Court to "supplant a foreign policy decision of the political branches with [this Court's] own unmoored determination" of whether the situation calls for evacuation in a manner that renders Plaintiffs' claims nonjusticiable under the political question doctrine....
[T]the 'strategic choices directing the nation's foreign affairs are constitutionally committed to the political branches[,]' and once it becomes clear that a plaintiff wishes the courts to 'reconsider the wisdom of discretionary foreign policy decisions[,]' the judicial inquiry must end.
!d. (quoting Zivotoftky v. Clinton, 132 S.Ct. 1421, 1427 (2012) and (quoting El-
Shifa v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (en bane)). [Additional
discussion of Zivotoftky v. Clinton's support for a nonjusticiability determination
in the instant case presented below at page 19.]
And consider also the District Court for the District of Columbia's political
question determination, made earlier in 2016, in the context of Yemen nationals
who asserted a directly-relevant federal tort claim statute to seek relief from
injuries that resulted from American national security actions in the Yemen:
"If plaintiffs' claims, 'regardless of how they are styled, call into question the
prudence of the political branches in matters of foreign policy or national security,'
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then they must be dismissed." Jaber v. United States, No. 15-0840, 2016 WL 706183, at *4 (D.D.C. Feb. 22, 2016) (quoting El-Shifa, 607 F.3d at 841). It was in respect for the separation of powers that the court refused to second guess President Obama's decision to launch drone strikes which killed and wounded Yemen nationals. The court was not competent to analyze the military and classified information needed to review the tort-claims statutory claims. Id. Similarly, President Trump's calculus in judging the hellish conditions presently existing in Yemen, and other listed nations, and his decision temporarily freeze Yemen nationals, and those from the other listed nations from obtaining a visa and/or gaining actual entry onto American soil is nonjusticiable.
The en bane D.C. Circuit has offered fulsome explanation as to why the federal judiciary should not review such matters: "The political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion." El-Shifa, 607 F.3d 836, 842-43 (D.C. Cir. 2010) (en bane). The en bane D.C. Circuit was resolute: "Courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security." Id. at 840.
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To understand this litigation, reference must be made to the passionately negative reaction of establishment and institutional elites to the candidacy of Donald John Trump. A significant percentage of the established intellectual leaders and Beltway hierarchy of both the Democratic and Republican parties, declared themselves early to be- #NeverTrump. Now a broader group of elites in our political, media and legal establishments seek to undermine President Trump's nascent administration- particularly in relation to his war-policies and aliens. As example, in a shocking act of insubordination, President Trump's Acting Attorney General Sally Yates publically announced she was ordering her federal prosecutors across the nation to not enforce the president's orders. Yates had accepted the offer to serve as President Trump's Acting Attorney General while being well aware of the president's positions on military strategy and alien entry. Tellingly, Yates did not resign in respectful disagreement with the travel freeze, but rather chose public insubordination. Senate Judiciary Chairman Charles Grassley was among many to describe General Yates' action as nothing less than "sabotage." Only history will tell if and when those establishment and Beltway elites, some perhaps tormented from what has been termed Trump derangement syndrome, come to eventually accept Donald Trump's election. See Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST -FORUM, Feb.15, 2017, http:!/jurist.org/forum/2017/02/Victor-Williams-travel-ban.php.
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Following Harisiades v. Shaughnessy, however, this Court must honor the choice of the electors and in "maintenance of a republican form of government" acknowledge that it is the elected-president, not the unelected judiciary, that has responsibilities to calculate war strategy and formulate war-related foreign policy. In Harisiades, the Supreme Court clearly stated "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government." 342 U.S. 580, 588-89 (1952).
Amicus respectfully argues that it is not possible for the judiciary to competently review the wisdom of the Executive Branch's calculus-- of war strategy, national security, and foreign policy- made in implementing the travel freeze. Conditions are such in these listed nations that there must be a fulsome assessment of the prior administration's vetting procedures by the new president: "[T]he risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high." Exec. Order No. 13780 (March 6, 2016).
As referenced above, over 40 foreign-born aliens from the six listed nations have been charged, tried and convicted of terrorist related acts in the United States since September 2001, revealed by Sen. Jeff Sessions' Senate Judiciary Committee
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Subcommittee on Immigration and the National Interest. Mathew Boyle, Senate-
Committee: 580 Terror Convictions Since 2001, BREITBARTNEWS, June 22,2016,
http://www.breitbart.com/bi g-government/20 16/06/22/senate-committee-580-
terror-convictions-in-u-s-since-911-3 80-tenorists-are-foreign-born/.
Although the Executive Branch should not have had to do so to avoid judicial
interference in its war-strategy calculus, the president's Executive Order
nevertheless references some of the hellish conditions existing in those listed
nations- conditions which require the travel freeze. Amicus respectfully asserts
that after the Court seriously considers these conditions, there should be no doubt
regarding its obligation to immediately dismiss the instant action:
i) Iran. Iran has been designated as a state sponsor oftenorism since 1984 and continues to support various tenorist groups, including Hizballah, Hamas, and tenorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in countertenorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' countertenorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign tenorist fighters. The United States Embassy in Libya suspended its operations in 2014.
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(iii) Somalia. Portions of Somalia have been terrorist safe havens. AlShabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to alQa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions ofthe country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, alQa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
Exec. Order No. 13780 (March 6, 2017). There is no competent way for the
Court to reach the "unmanageable" analysis of statutes or rules involving alien visa
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issuance or revocation or any other such ordinary immigration processes. Orderly judicial abstention is critically important during this time of prolonged war, during which recent presidents have struggled with implementing complicated foreign policy and national security formulas related to the most unusual and difficult conflict with radical terrorists.
In the instant case, Plaintiffs may not clear the political question bar simply by recasting the president's calculus involved with a foreign policy and national security determination in terms of an ordinary matter of immigration law and/or APA immigration procedure. See Aktepe v. United States: 705 F.3d 1400 (II th Cir. 1997). Neither can Plaintiffs jump the abstention barrier by specious assertions of due process and equal protection violations, United States v. Verdugo- Urquidez, 494 U.S. 259,269 (1990) (citingJohnsonv. Eisentrager, 339 U.S. 763,770 (1950), nor by assertions of religious discrimination by slanderously questioning the motives of the president for implementing the freeze. There are "legitimate reasons" for the president's action and this Court can "not infer a discriminatory purpose." McCleskey v. Kemp,481 U.S.279,298-99(1987).
Nor can the equally specious assertions by American citizens and permanent residents who claim a legal interest in foreign-soil aliens' entry onto American soil during the time of war justify this Court's interference with the Commander-in-
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Chief decision. The president is simply placing a pause on the entry of foreign-soil aliens from the very region of the world that is spawning our terrorist enemies.
Throughout our Republic's history, the Supreme Court has recognized that some issues are committed by the Constitution's text to the exclusive discretion of the elected political branches. When these political questions manifest, the judiciary lacks jurisdiction to act in its prescribed and limited role as a court. Congressman John Marshall, in 1800, warned his U.S. House colleagues that the political branches would be "swallowed-up by the judiciary" without such judicial self-restraint. Speech of the Honorable John Marshall (Mar. 7, 1800), 18 U.S. app. note I, at 16-17 (1820) (cited by The Political Question Doctrine and the Supreme Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.) 25 n. 10) 2007).
Three years later, U.S. Chief Justice John Marshall provided early guidance as to the "rule of law to guide the court in the exercise of its jurisdiction." Marshall offered this political question description: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison,
5 u.s. 137, 165 (1803).
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More recently, Seventh Circuit Judge Richard Posner artfully explained that the doctrine acknowledges the Constitution's "assignment of exclusive decision making responsibility to the nonjudicial branches of the federal government." Miami Nation ofIndians v. Department ofInterior, 255 F.3d 342 (7th Cir. 2001). Consider Judge Posner's abstention description:
The doctrine identifies a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or legislativethe so-called 'political' - branches of the federal government. Id at 346. (citations and references omitted). Even more instructive is Richard Posner's strong statement regarding the "nature of the questions that the court would have to answer - which asks whether the answers would be ones a federal court could give without ceasing to be a court." Id at 347.
In the context of the national litigation challenging the travel freeze, it is fair to consider that a court's zealous actions to force an answer to the patent political question matches Posner's description of a court "ceasing" to be a court.
In Zivotofsky v. Clinton, the Supreme Court was discretely tasked with determining a federal statute's constitutionality and the resulting ruling provides helpful contrast as to the contours of the abstention requirement. 132 S. Ct. 1421 (2012). Unlike the instant case, the high court did not need to determine whether
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there were judicially determinable and manageable standards for an interpretation, analysis, and application of the relevant statute. Its determination was discrete as to the statute's constitutionality. Indeed to make it clear that Zivotofsky was decided in a narrow context, Associate Justice Sonia Sotomayor, in concurrence, reiterated the importance of political-question abstention to the separation of powers. Id at 1431-6 (2012). And Associate Justice Steve Breyer wrote to warn how allowing judicial review in a broader foreign policy context can pose a "serious risk" of "embarrassment, show lack of respect for the other branches, and potentially disrupt sound foreign policy decision making." Id at 1437. Justice Breyer urged careful consideration of the abstention option in foreign policy matters involving the Middle East where ordinary administrative matters can have far reaching implications:
Political reactions in that region can prove uncertain. And in that context it may well tum out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the president's ability to make significant recognition-related foreign policy decisions. !d. at 1429-30. The instant case requires far more than a straightforward determination of a statute's constitutionality, as was the case in Zivotofsky. Rather, the Plaintiffs' claims require this Court to review and second guess the Executive Branch's
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complicated foreign policy and national security calculus in prosecuting the war on terror. As discussed above, in Mobarez, the District of Columbia District of Columbia acknowledged Zivotofsky 's assistance to cases such as the instant one. Mobarez v. Kerry Civil Action No. 2015-0516 (D.D.C. 20 16). Other courts have recently made similar nonjusticiability determinations by contrasting the narrow context of the Zivotosky ruling. See Ctr.for Biological Diversity v. Hagel, 80 F. Supp. 991, 1011 (N.D. Cal. 2016) and Alaska v. Kerry, 972 F. Supp. 1111 (D. Alaska 2013).
Judicial oversight of the newly-elected president's travel freeze violates fundamental constitutional understandings regarding the separation of powers and consent of the governed. The newly-elected president is vested with all executive power by Article II,§ 1, and is made Commander-in-Chief of the Army and Navy and state militias by Article II,§ 2. The president has a most solemn duty to protect the Republic's citizens from potential harm. Vigilance against alien enemies who threaten to alight our shores, during a time of war, is the highest mandate of the president. But, as argued above, the travel freeze has obvious "smart power" foreign policy objectives that are also critical to the president's prosecution of the war.
Providing such Executive energy for national security was a fundamental reason for the 1787 Convention that led to replacement of the Articles of
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Confederation. Consider Alexander Hamilton's argument for ratification of our second Constitution in FEDERALIST 23:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety ofnational exigencies, and the correspondent extent and variety ofthe means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. Alexander Hamilton, "No. 23: The Necessity ofa Government as Energetic as the One Proposed to the Preservation ofthe Union, "in Clinton Rossiter, ed., The Federalist Papers 148-153 (New York: Mentor, 1999). From Marbury forward, the political question doctrine has developed to preclude judicial consideration in a variety of issues with foreign relations prominent. See e.g., Detjen v. Central Leather Co., 246 U.S. 297, 303 (1918).
In the modem case of Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court identified six independent characteristics "[p]rominent on the surface of any case held to involve a political question." The first two are often given the most weight. The six include:
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[1] a textually demonstrable commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; [4] or the impossibility of a court's undertaking of independent resolution without expressing lack of the respect due to coordinate branches of government; [5] or an unusual need for unquestioning adherence to the political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
See Baker, 369 U.S. at 217. As the D.C. Circuit has written, only one Baker criteria need manifest for an
abstention determination. See Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). Not one, not two, but all six Baker characteristics are patent for this Court's consideration of the Plaintiffs' claims. If the Court goes beyond the textuallycommitted authority of the president, it risks becoming lost in the densest of a modem political thicket. The Court will find no manageable standards to competently decide the claims and will be forced to make policy determinations -without the skills or classified information needed for such determinations.
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Again, there are no judicially manageable standards by which the Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision - based on that intelligence - whether to restrict entry of foreign-soil aliens from the listed nations. And, the Court has no ability to judge the layered foreign-policy objectives for the president's explicit messaging to other nations of the cooperation expected in the war on terror if they want to avoid being placed on the list - in future. As a matter of a required firstorder determination, the Court's inquiry into such Executive Branch business is barred. Assertion that such an inquiry is necessary to an unmanageable, secondorder statutory analysis does not make the inquiry or the controversy justiciable.
It will be with little or no "respect" shown to coordinate political branches if the Court seriously considers Plaintiffs' specious assertion that the president's motivation for the freeze stems from religious bigotry. And review of this matter is opposite to an "adherence" to the president's political decision already made. The Court's engagement in such judicial interference also threatens political and practical chaos. And by reviewing the instant matter, this Court will only add to the "multifarious pronouncements" of courts across the nation regarding the travel freeze.
Although both the president and the judiciary will suffer "embarrassment" from such judicial intervention, it is the American people who will suffer a greater
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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 36 of 45
danger of terrorist harm. And the American people's long asserted claims of self-governance are cast into doubt if their newly-elected president is not given room to do exactly what he promised to during 2016 election - better protect citizens during this time of war.
Judicial declarations interfering with President Trump's decision on the travel freeze will certainly create doubts among the international community as to the resolve of the United States to adhere to this position. And the judicial interference undercuts the freeze's message to other nations regarding the new administration's broader and significant shift to an "America first" war strategy and foreign policy. See Lowry v. Regan, 676 F. Supp. 333, 340 (D.D.C. 1987). See also, Smith v. Reagan, 844 F.2d 195, 199 (4th Cir. 1988).
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) applied these Baker factors by instructing that the political question analysis begins by "determin[ing] whether and to what extent the issue is textually committed." 506 U.S. at 228. The Supreme Court rejected, as nonjusticiable, a debenched federal judge's challenge to the Senate's exercise of its Article I, § 3, Clause 6 "sole" duty to "try" all impeachments. The Court refused to review a procedurally problematic Senate impeachment trial process in which an "evidence committee" of only 12 senators heard testimony while 88 senators avoided jury duty. All 100 Senators were ultimately allowed to vote --thumbs up
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or down -- rendering the final removal verdict. The Court determined that it did not have authority to review the shortcut Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary. The Court explicitly ruled "the word 'try' in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate" Id. at 239. Neither should this Court review the president's exercise of his exclusive textual authority to implement war strategy and security-related foreign policy.
Just as the Supreme Court did in the Nixon, this Court should readily determine that "there is no separate provision of the Constitution" 506 U.S. at 237, that could be rationally argued to conflict with the President's textual authority to utilize his war powers to implement the travel freeze. Foreign-soil aliens do have Fifth Amendment rights (and they cannot bootstrap such rights from their alleged contacts with American citizens and resident aliens). As Chief Justice William Rehnquist wrote: "Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." United States v. Verdugo-Urquidez, 494 U.S. 259,269 (1990) (citingJohnsonv. Eisentrager, 339 U.S. 763, 770 (1950). See also, Lega!Assistancefor Vietnamese AsylumSeekersv.Dep'tofState, Bureau ofConsular Affairs, 104 F.3d 1349, 1354 (D.C. Cir. 1997) and Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990).
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Neither do foreign-soil aliens have First Amendment rights to assert religious discrimination claims. Protests that Donald Trump had bad motives in his decision to institute the travel freeze -particularly those that allege a religious bias against Muslims by including references to statements he made in the 2016 presidential election- are both specious and slanderous. Again, there are "legitimate reasons" for the president's action and this Court can "not infer a discriminatory purpose." McCleskey v. Kemp, 481 U.S. 279,298-99 (1987).
It bears reemphasis that the travel freeze does not apply to aliens presently residing in America, unlike the alien residents at issue in Yick Wo v. Hopkins, 118 U.S. 356,369 (1886). And the instant action does not involve aliens having been involuntarily taken to, and/or subject to prolonged detention on, American soil or on foreign soil over which America has "plenary or exclusive jurisdiction." Rasul v. Bush, 542 U.S. 446 (2004). Quite the opposite in factual context, the complaints stem from foreign-soil aliens not being immediately allowed entry onto America's soil. The Guantanamo Bay cases are not supportive of the Court's subject matter jurisdiction in this matter. See Boumediene v. Bush, 53 US 723 (2008).
Goldwater v. Carter is the best example of the Supreme Court's most efficient political question determination. 444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry Goldwater, who sued President Jimmy Carter to challenge his abrogation of a United States treaty with Taiwan. The
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Supreme Court rejected the senators' attempt to interfere with an exclusive

Executive authority to conduct foreign policy. Without oral argument, the high

court announced: "The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint." Id. In a concurring statement, Associate

Justice William Rehnquist explained: "[T]he basic question presented by the

petitioners in this case is 'political' and therefore nonjusticiable." Id. at 1002.

After neither oral argument or a review the merits regarding the senators'

challenge to the president's foreign policy decision, Rehnquist stated:

An Art. III court's resolution of a question create far more disruption among the three than the resolution of a question presented

that is 'political' in character can coequal branches of Government in a moot controversy. Since the

political nature of the questions presented should courts from considering or deciding the merits of

have precluded the lower the controversy, the prior

proceedings in the federal courts must be vacated, and the complaint

dismissed.

Id. at 1005-06.

Just a year before the American people were to replace a weakened

Executive with a new president who promised a different foreign policy (an

election that was held while Iran's religious tyrants held Americans hostage in the

U.S. Embassy), Justice Rehnquist upheld the authority of the president and the

legitimacy of the judiciary by articulating the requirement for judicial abstention.

Justice Rehnquist's 1979 words provide the clearest argument for this Court's 2017

immediate dismissal.

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But perhaps less "domesticated" abstention advocacy is needed to counsel this Court's self-restraint in this important and highly public matter; "something greatly more flexible, something of prudence, not construction and not principle." The purest prudential strain of nonjusticiability still incubates in Alexander Bickel's THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Professor Bickel described political questions as those issues which ask the courts to evaluate policy and choose between outcomes - functions which the judiciary as an institution is functionally incompetent to carry out.
In unmatched written aesthetic, Alexander Bickel offered a foundation
instead of Baker-like criteria:
In a mature democracy, choices such as this must be made by the executive ... Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court's sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally ("in a mature democracy"), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to draw strength from.
Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 (Yale 1986).
When considering the danger that could result from judicial interference in the president's foreign policy and war strategy, it is disturbingly prescient that
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Professor Bickel addressed "the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be." And certainly today, our unelected judiciary, which has "no earth to draw strength from," would be wise to stay out of the worsening and ugly mud-fight being waged by ideological elites against Donald Trump.
Admittedly, the late Yale University Law professor's prudential poetry unnerves the judge-centric consciousness so predominant at bar and in the legal academy. All the more reason for this Court's deep consideration of its fundamental truths.
There is a related-- but separate -consideration for this Court: The nation's extreme need for finality in this matter. This need for finality weighs very heavily in favor of a political question determination. As Judge Steven Williams reasoned in 1991, when Nixon v. United States was before the D.C. Circuit: "Although the primary reason for invoking the political question doctrine in our case is the textual commitment. ..the need for finality also demands it." Nixon v. United States, 938 F.2d 239, 245-46 (D.C. Cir. 1991)(citations omitted).
The cost of the judiciary answering political questions is often chaos: "If claims such as Nixon's were justiciable, procedural appeals from every impeachment trial would become routine ...the intrusion of the courts would
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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 42 of 45
expose the political life of the country to months, or perhaps years, of chaos." Id at 246. Challenges to the president's travel freeze are now becoming "routine," with adjudications challenging the travel restriction ongoing in several sister courts. It must be clearly seen that "the intrusion of the courts would expose the political life [and national security] of the country to months, or perhaps years, of [dangerous] chaos." !d.
As what is termed Trump derangement syndrome appears virulently contagious among lawyers (who need only the federal court filing fee to manifest the disorder), finality in this area is needed to help retard future frivolous litigation against Donald Trump's future war prosecution and related foreign policy efforts.
Attempts by the judiciary to interfere with President Trump's exercise of his inherent and exclusive authorities threaten a serious breach of the separation of powers. The judiciary does not have the institutional competence or information to make decisions about what actions are required in order for the new president to fulfill his responsibilities to prosecute this unusual, ongoing war.
Just as the D.C. Circuit explained, cases involving national security and foreign relations "raise issues that 'frequently turn on standards that defy judicial application' or 'involve the exercise of a discretion demonstrably committed to the
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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 43 of 45
executive or legislature."' El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 221).
Article II grants the president war powers and security-related foreign relations authorities "the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). In our 227 years of self-government practice under our second constitution, only 45 persons have known the unique obligation. It is a burden that requires the president to make difficult calculations often based often on classified information. President Barack Obama has now been relieved of that heavy burden, and a majority of"Electors [have met and voted] in their respective states" to place the burden on the shoulders (and on the heart) of another. U.S. CONST. AMEND. XII,§ 1.
This Court should not interrupt the new president's prosecution of the war that he inherited from past administrations - from past presidents holding onto tired and failed foreign policies. Amicus respectfully argues that the Plaintiffs' claims should be immediately dismissed with a determination ofnonjusticiability.
Just as this argument began, it should finish by again acknowledging that one can hardly bear to read many of the tragic narratives of aliens' hurt, fear, and family separation as relayed in the travel freeze litigation across America. Sadly,
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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 44 of 45

General Sherman remains right- "war is hell." During this time as our new president re-orients prosecution of America's prolonged war with terrorism, while the hellish states of civil war, violent disorder, and evil oppression only worsen in the listed nations, our federal judiciary has its own high duty to perform -abstention.

Dated: March 13, 2017

//

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IsIVrv~r >:rams, prose

A~}¢ r. 1rst Lawyers Association

www.americafirstlawyers.com

5209 Baltimore Ave

Bethesda, MD 20816

(301) 951-9045

americafirstlawyers@gmail.com

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Case 1:17-cv-00255-TSC Document 56 Filed 03/31/17 Page 45 of 45

CERTIFICATE OF SERVICE

I hereby certify that on March 13, 2017, the foregoing briefwit@evant motion
\/i-.:' ~ , {V\__cA- l \_
was filed with the Clerk of this Court using F_e_..d-""~;:al~ss (as prose prospective

Amicus is not a registered ECF user) and served on parties through electronic

transmission usiq
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th/ eir e-mail address registered with ECF account.

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/sNI/jf:Jj''ams,pro se

Ani'{;{ca,ir'st Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com

36

 
 Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

AMICI CURIAE BRIEF OF NATIONAL AND REGIONAL CIVIL RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 2 of 33
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES
DANGEROUS CONDITIONS FOR MEMBERS OF MINORITY GROUPS. .................2 A. Stereotyping Minority Groups Creates A Climate For Discrimination. ..................2 B. The Executive Order Is Based On Stereotypes About Muslims And Arabs
As “Anti-American” And “Terrorists.” ...................................................................5 C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged
Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. ...........................................................8 II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST ..................................................................11 A. Animus Towards A Particular Group Is Not A Legitimate Government Interest....................................................................................................................11 B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest. ............................17 C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims ...................20 III. CONCLUSION..................................................................................................................25
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Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 3 of 33
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) ......................................................................................................3
Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2011) ...................................................................................................12
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)...........................................................17, 18, 19, 24
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...............................................................................................12
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)...................................................................................................................4
Buck v. Davis, 580 U.S. ____, 137 S. Ct. 759 (2017)....................................................................................4, 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................................... 12, passim
Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985) .............................................................................................13
Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) .....................................................................................................4
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...................................................................................................................2
Hassan v. City of New York, 804 F.3d (2d Cir. 2016)..............................................................................................................3
Hawai‘i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).....................................................................19, 20
Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ...........................................................................................................19
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................11
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Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 4 of 33
Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...................................................................................................................2
Loving v. Virginia, 388 U.S. 1 (1967).......................................................................................................................4
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................9
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................20
Miller-El v. Dretke, 545 U.S. 231 (2005)...................................................................................................................3
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)...................................................................................................................3
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................13, 14, 17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................................................................2
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) .....................................................................................................3
Romer v. Evans, 517 U.S. 620 (1996)...............................................................................................13, 15, 16, 17
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)...................................................................................................................8
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................2
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) ........................................................................................................3
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...............................................................................................13, 16, 17, 25
United States v. Robel, 389 U.S. 258 (1967).................................................................................................................21
United States v. Stephens, 421 F.3d 503 (7th Cir. 2005) .....................................................................................................3
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Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 5 of 33
United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................................12, 16, 17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...........................................................................................11, 20
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................................................12
FEDERAL REGULATIONS
82 Fed. Reg. 13,209 (Mar. 9, 2017).................................................................................................7
82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................................................6
OTHER AUTHORITIES
Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP .....................................................................10
Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons ...................................................................................................21, 22
C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). .................................................................................................................7
Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kelly-travel-ban-muslimcountries ...................................................................................................................................22
David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climate-racial-intolerance%E2%80%99-fueled-anti-muslimpolitical-rhetoric .......................................................................................................................10
Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travelban-will-have-same-basic-policy-outcome.html .....................................................................19
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Helena Horton, Muslim ban statement ‘removed’ from Donald Trump’s website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statementremoved-from-donald-trumps-website/. ....................................................................................5
Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/ ...............................................................................................................................5
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) ....................13
Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html ...................................................................................25
Louis Nelson, Trump on immigration order: Call it what you want — it’s about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trump-immigration-order-ban-no-ban234477........................................................................................................................................6
Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_b omb_plot.html ..........................................................................................................................24
Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kent-shooting-victim-sayshe-was-told-go-back-to-your-own-country/. ...........................................................................10
N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trumpforeign-policy.html?_r=0 ...........................................................................................................6
Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017)..............................................................................................................7
Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science (Nov. 26, 2004) ..........................................................................................................................................7
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)......................................................................................4
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/dhsmemo-contradict-travel-ban-trump/98374184/..................................................................22, 23
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Case 1:17-cv-00255-TSC Document 57 Filed 03/31/17 Page 7 of 33 Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes
about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004)........................................4 Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc.
Psychol. 371, 375-76 (1963) ......................................................................................................4 Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et
al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998) ...........................................2 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC
(Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddowshow/trms-exclusive-dhs-document-undermines-trump-case-travel-ban ................................23
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INTRODUCTION Amici, the American-Arab Anti-Discrimination Committee, the Center for Constitutional Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights, The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice, the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form. The amici respectfully submit this brief to advance two separate but related arguments. First, amici submit that the balance of equities and public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”), as it improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order targets a religious minority in a manner that demands that this Court apply strict scrutiny to the question of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, amici write separately to argue that, even if this court were to review the Executive Order under a “rational basis” test, the Order would still violate the Constitution’s equal protection guarantee. Regardless how the Government has sought to characterize or revise the Order after the fact, the evidence demonstrates that it is motivated by animus toward Muslims and those born in the targeted majority-Muslim countries, and not by any demonstrable national security concerns. This motivating animus is not a legitimate government end under any level of scrutiny. As such, the
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Executive Order is unconstitutional. I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES DANGEROUS
CONDITIONS FOR MEMBERS OF MINORITY GROUPS. A. Stereotyping Minority Groups Creates A Climate For Discrimination. The balance of equities and public interest in this case weighs in favor of enjoining the Executive Order due to the dangerous and discriminatory conditions it engenders. The courts have generally recognized that stereotyping of minority groups has a negative effect on individuals within those groups and creates a climate ripe for discrimination. Categorization, or social categorization, is the natural cognitive process by which people place individuals into particular social groups. Social categorization essentially has the effect of exaggerating between-group differences while minimizing within-group differences, thereby increasing perceived homogeneity within groups. Some categorization is “automatic,” but much categorization is built on social cues. “Stereotyping, prejudice, and discrimination clearly profit from context-driven processes such as categorization . . . .” Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998). In light of the extensive social science research on this subject, the Supreme Court has repeatedly stated that discriminatory stereotypes impact decision making. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (recognizing disparate impact liability in housing decisions to prevent segregated housing patterns that might otherwise result from the role of “covert and illicit stereotyping”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing the role that sex stereotyping played in employment discrimination case, explaining “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision), superseded by statute as
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stated in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability); accord Miller-El v. Dretke, 545 U.S. 231, 268 (2005) (“Subtle forms of bias are automatic, unconscious, and unintentional and escape notice, even the notice of those enacting the bias.”) (citations omitted). Further, the Court’s precedent outlines the negative effects that arise from stereotyping and social categorization. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (addressing Equal Protection claims relating to school integration efforts and recognizing harms traceable to “pernicious” racial classifications and school segregation).
The circuit courts also recognize that social categorization and stereotyping often create the conditions for discrimination in areas such as provision of housing, employment decisions, and police motivations. See Hassan v. City of New York, 804 F.3d, 306 (2d Cir. 2016) (rejecting “appeals to ‘common sense’” which “might be infected by stereotypes” as sufficient to justify police surveillance of Muslim individuals, business, and institutions) (quoting Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of “unlawful animus” in an employment discrimination case because “unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999)); United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury selection and the outcome of trials); Eastman Kodak Co., 183 F.3d 42 (holding Title VII’s ban on “disparate treatment because of race” includes “acts based on conscious racial
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animus and . . . employer decisions that are based on stereotyped thinking)); Gonzalez-Rivera v. INS, 22 F.3d 1441, 140 (9th Cir. 1994) (recognizing in police stop case that “officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so”).
Stereotyping of all kinds can be exacerbated through a psychological triggering phenomenon known as “priming.” Priming occurs when “subtle influences . . . . increase the ease with which certain information comes to mind.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness at 69 (2009). In the case of racial stereotyping, which shares many attributes with stereotyping of Muslims, priming an individual with race-based stereotypes can influence later decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004). Social science research repeatedly demonstrates that individuals have a persistent tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963). The connection between state sanctioned discrimination and private harm is clearest in the Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court recognized that discrimination with the sanction of law raises unique and particular dangers.
The Supreme Court very recently said that discriminatory harm can be heightened when it is officially legitimized. In Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), the Supreme Court held that the use of a defense expert in the sentencing phase of a capital trial to testify that African-Americans are more likely to commit violent crimes constituted ineffective assistance of counsel in violation of the Sixth Amendment. According to the Court, the effect of the racial stereotyping on the jury was “heightened due to the source of the testimony. [The expert] took
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the stand as a medical expert bearing the court’s imprimatur.” Id. at 777. B. The Executive Order Is Based On Stereotypes About Muslims And Arabs As “Anti-American” And “Terrorists.” As in the cases cited above, the Muslim ban bears the imprimatur of the Executive
Branch, engendering precisely the type of discriminatory harms that the Court has held cannot withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump issued a written statement calling for a “total and complete shutdown on Muslims entering the United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has been a major item on his policy agenda.1 At that time, his campaign explained that “there is great hatred towards Americans by large segments of the Muslim population.” He also characterized the need for a bar on Muslim and Arab entry into the United States as a way to stop our country from being the “victims of horrendous attacks by people that believe only in Jihad.”2 Before a single vote was cast, President Trump distinguished his campaign by expressly categorizing Muslims as “dangerous” and “terrorists.”
Mr. Trump’s categorization of Muslims has been ongoing. On January 4, 2016, the Trump campaign premiered its first television advertisement. That advertisement told viewers that Trump was “calling for a temporary shutdown of Muslims entering the United States” until doubts about “radical Islamic terrorism” can be “figure[d] out.”3 The link the President drew between “radical Islamic terrorism” and all individual Muslims entering the United States could not be more strongly established. Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that “the struggle against radical Islam also takes place in our 1 Helena Horton, Muslim ban statement 'removed' from Donald Trump's website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statement-removedfrom-donald-trumps-website/. 2 Id. 3 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
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homeland. . . . We must stop importing extremism through senseless immigration policies.”4 Again, through allusion to the individual Muslims entering the United States through legitimate means, Trump emphasized that he draws a connection between individual Muslims and the “struggle against radical Islam.”
Just one week after his Inauguration, President Trump acted to fulfill his campaign pledge and codify his campaign rhetoric. On January 27, 2017, he signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017). Among the immigration restrictions contained in Executive Order 13,769 was a temporary ban of all nationals from seven majority-Muslim countries from entering the United States: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. Section 1 of E.O. 13,769 explained that the Order is intended to ensure that the United States stays “vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
While many surrogates of the current Administration pushed back at the characterization of E.O. 13,769 as a “Muslim ban,” the President embraced it, which demonstrated his embrace of the social categorization of Muslims as “dangerous” and “terrorists.” He told the public via Twitter that “[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of country!”5 Throughout his campaign, and now in office, President Trump has voiced his view of Muslims as threats to national security.
After multiple courts enjoined enforcement of E.O. 13,769, the Trump Administration
4 N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html?_r=0. 5 Louis Nelson, Trump on immigration order: Call it what you want — it's about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trumpimmigration-order-ban-no-ban-234477.
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announced plans to make revisions to that order. On March 6, the Administration issued E.O. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). The revised Executive Order preserves several core provisions of the prior Order, including the suspension of the United States Refugee Admissions Program for 120 days, and the suspension of entry into the United States of nationals of six of the majority-Muslim countries designated in E.O. 13,769 for 90 days. See §§ 6(a); 2(c). Like E.O. 13769, the new Order targets only majority-Muslim countries.
This official action of marking a social group, Muslims, as a dangerous “fifth column,” only aggravates societal biases against Muslims and Arabs in this country. It creates conditions where violence against Muslims is seen as more acceptable because they are perceived stereotypically as “bad people.” A “sample of U.S. citizens on average viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially sincere, honest, friendly, or warm.” Susan T. Fiske, et al, Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science, 206, 1482-1483 (Nov. 26, 2004). More recent social science detailing the administration of “implicit association tests” demonstrates both the already-existing climate of prejudice against Muslims and Arabs and the unconscious nature of that bias: “Non-Arab and non-Muslim test takers manifested strong implicit bias against Muslims. These results are in sharp contrast to self-reported attitudes.” C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). In 2011, the Pew Research Center surveyed Western cultures to determine the characteristics they associate with people in the Muslim world. That survey found that about half of respondents characterized Muslims as “violent,” and more than half characterized Muslims as “fanatical.”6 The Executive Order exacerbates already
6 Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017).
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existing, but latent, stereotypes and prejudices against individual Muslims in the United States. C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. There can be no doubt that, given its origin and history, the Executive Order is based on
social categorization of Muslims as “anti-American,” “terrorists,” and those with “hatred for Americans.” In this case, President Trump’s repeated, unsubstantiated claims that Muslims are dangerous, and should be barred from entering the country, are just the “cue” needed to release other suppressed discrimination and violent beliefs held by those harboring ill will or unconscious bias against Muslims. The President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the immigration of Muslims and Arabs into the country, places an official “imprimatur” on those stereotypes, magnifying their effect.
When someone in a position of authority, as President Trump, categorizes Muslims as dangerous and terrorists, he creates the message that Muslims are “outsiders” and not full members of the political community. In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000), the Court found unconstitutional a school sponsored religious message, delivered over the school’s public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to a school policy. The Court’s reasoning was based on its view that the school policy created two classes of people—those who adhered to the favored religion, and those who did not. Id.
The President’s strong and consistent support of what he calls a “Muslim ban” similarly sends the message that those who adhere to Islam as their religion are not part of American society, as opposed to Christians and non-Muslims, who are favored by the ban. In doing so, he “send[s] a message to non-adherents [to the Christian faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are
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insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring). The Executive Order and the President’s statements characterize Muslims as homogenous and a national threat. The President’s demonization of Muslims engenders a climate conductive to violence against people seen as Muslims.
In the short aftermath of the Executive Order and its predecessor, E.O. 13,769, and their chaotic implementation, anti-Muslim hate crimes have flourished. The February 22, 2017 shootings of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as enemies of the American people. Kuchibhotla and Madasani, two engineers at a local technology company, and both Indian immigrants to the United States, had gathered with co-workers at a bar near their office to watch a local college basketball game. Also at that bar was Adam Purinton, a 51-year-old U.S. Army veteran who mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities categorized by the Executive Order and its predecessor as barred from entry into the United States). Purinton approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!” Kuchibhotla was killed, and Madasani was wounded, in the incident. Ian Grillot, a patrolman present at the scene, was wounded while attempting to intervene. Purinton fled across the state border into Missouri, telling a bartender in a second bar that he needed to hide out because he had just shot two Iranians. Putting aside Purinton’s stereotyped view that his victims were Iranians simply because they appeared to be foreign-born immigrants, his actions demonstrate the danger that social categorization can cause by exaggerating both the distance between in-groups (“real Americans”) and out-groups (“Iranians”), as well the homogeneity of the out-group. As the Southern Poverty Law Center described the Olathe violence, “shocking hate crimes” “emerge not from a vacuum, but always from an environment that encourages and
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fosters [that] kind of violence.”7
In addition, a rash of arsons and vandalism at mosques has plagued the United States
surrounding the issuance of E.O. 13,769. On January 27, 2017, the very date of the first order, a
fire destroyed the Islamic Center of Victoria, Texas. On February 24, 2017, a blaze broke out in
the entrance of the Daarus Salaam Mosque near Tampa, Florida. Combined with two arsons of
mosques shortly before President Trump’s inauguration, the United States has seen a surge of
hate crimes against the Muslim community that is unprecedented. A spokesperson at the
Southern Poverty Law Center told reporters that “four mosques being burned within seven weeks of each other” was “part of a whole series of dramatic attacks on Muslims.”8
Other recent attacks on mosques in the United States include a rock thrown through a
window of the Masjid Abu Bakr mosque in Denver, Colorado and vandals destroying the
entrance sign at the Muslim Association of Puget Sound in Redmond, Washington. On March 5,
2017, a Sikh man was shot in his Kent, Washington driveway when a man approached him and said “go back to your own country.”9
Rather than incitement of crime and hatred, the public interest in this county is best
served by tolerance of different religions as the Constitution requires, and tolerance of both
foreign-born and American-born adherents of different religions. The insidious effect of the
Muslim and Arab ban does not impact merely those persons seeking to enter the United States
7 David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99-%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 8 Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017-begins?utm_term=.rhx3bJRw6#.wcxEQDMKP. 9 Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kentshooting-victim-says-he-was-told-go-back-to-your-own-country/.
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from the six designated countries. By promoting malevolent social stereotypes and fueling violence against a minority, the Executive Order fundamentally threatens the American ideal of a diverse society made up of different of ethnic groups, races, and religions. II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT INTEREST Plaintiffs’ Motion for a Preliminary Injunction sets forth in detail why the Executive Order discriminates on the basis of national origin and religion and thus is subject to strict scrutiny review. See ECF No. 35. Amici agree with Plaintiffs that the Executive Order is properly subject to, and fails, strict scrutiny. Amici write separately to argue that, even if the Executive Order were reviewed under a more deferential standard for which Defendants presumably will advocate,10 the Order would still violate the Equal Protection Clause because it is motivated by an animus toward Muslims and those born in the targeted majority-Muslim countries, and has no rational relationship to any legitimate governmental purpose. A. Animus Towards A Particular Group Is Not A Legitimate Government
Interest. Strict scrutiny under the equal protection clause applies where the Government singles out a suspect class or interferes with the exercise of a fundamental right. Where strict scrutiny applies, the challenged law is presumed to be invalid, and will survive judicial review only if the Government can show that it is “narrowly tailored” to further “compelling governmental interests.” See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (citation and internal quotation marks omitted). In contrast, the rational basis standard treats governmental conduct as
10 In the related Washington v. Trump proceeding, Defendants argued that the Executive Order was actually not subject to any standard of review and was, in fact, unreviewable because it related to immigration and national security. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The Ninth Circuit rejected this argument noting that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Id. at 1162.
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presumptively valid, placing the burden on the challenger to prove that such conduct is not “rationally related to a legitimate state interest.” See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, the level of scrutiny is often a key factor in determining the outcome of an equal protection challenge to government action.
Government action fails even the more forgiving rational basis test, however, where it evinces animus directed against an unpopular group. As discussed below, where the history of a law reflects that it was motivated by animus against a particular class of people, the Court must give “careful consideration” to the government’s stated justification for the law. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). In such circumstances, courts will apply a more searching review to the stated justifications for the policy in order to determine whether the policy is, in fact, motivated by impermissible animus. In his concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Judge Holmes explored in depth the current state of what he called “animus” jurisprudence. Id. at 1097-103 (Holmes, J., concurring). He concluded that:
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. Id. at 1103; see Windsor v. United States, 699 F.3d 169, 180–81 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute”) (citation and internal quotation marks omitted); Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 691–93 (6th Cir. 2011) (noting that where Supreme Court found “that the legislation at issue was in fact intended to further an improper government objective,” it applied “rational basis with a bite”)
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(internal quotation marks omitted); Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983, 990–91 (D. Kan. 1985) (“In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required.”).11
Because animus is not a legitimate government interest, a long line of Supreme Court precedent holds that laws motivated by animus are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment (if enacted by state or local governments) and/or the Due Process Clause of the Fifth Amendment (if enacted by the federal government).
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court considered a Fourteenth Amendment challenge to a Texas statute that both denied state funding for the education of children not “legally admitted” into the United States and authorized school districts to deny enrollment to such children. The Court recognized that undocumented aliens did not constitute a suspect class, and that public schooling was not a Constitutional right.12 Nonetheless, in recognition of the seminal role that education occupies in the nation’s political and cultural heritage, and in the development of productive contributors to American society, the Court held that denying education to the entire class of undocumented alien children would be rational only if it furthered some substantial state goal. The Court then carefully reviewed the State’s purported bases for the legislation, which included deterring unlawful immigration, avoiding “special burdens” on the State’s educational system allegedly created by undocumented alien
11 See also Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne, Moreno, and Romer “depart[s] from the usual deference associated with rational basis review” and “commentators have correctly discerned a new rational basis with bite standard in such cases”). 12 The Supreme Court has recognized four suspect classes: race, religion, nationality, and alienage. The Court has also recognized two quasi-suspect classes—gender and illegitimacy—to which it applies a level of review known as intermediate scrutiny. See, e.g., Cleburne, 473 U.S. at 440-41.
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students, and refusing public education to a class of children deemed less likely to remain in the State and therefore make productive use of that education. Finding that the legislation would not meaningfully further any of these goals, and that a desire to punish children was not a legitimate government interest, the Court struck down as irrational a law that promoted “the creation and perpetuation of a subclass of illiterates within our boundaries.” Id. at 220, 230.
In Cleburne, the Court struck down a zoning ordinance that required special use permits for homes for individuals with Down syndrome, while not requiring such permits for various other residential facilities, including apartment houses, multi-family dwellings, boarding houses, and fraternity and sorority houses. The Court declined to treat those with an intellectual disability as a suspect or quasi-suspect class, and so applied rational basis review. However, the Court conducted a searching review of the stated reasons for the ordinance, and concluded that none of them provided any legitimate basis for differential treatment of the affected group.
One of the City’s purported justifications for the permit requirement was concern about “negative attitudes” of neighbors living close to a facility for the mentally disabled, and “fears” of elderly residents in the community. In finding that this stated justification lacked a rational basis, the Court noted that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for people with mental disabilities differently from apartment houses, multiple dwellings, and the like.” Id. at 448. Of particular relevance here, the Court stated that the Government “may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. Finding no evidence that the ordinance was rationally related to the objectives urged by the City, the Court concluded that “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Id. at 450.
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In Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated an amendment to the Colorado state constitution that nullified state laws prohibiting discrimination against same-sex couples. Because the Court did not view sexual orientation as either a suspect or quasi-suspect class, it once again applied rational basis scrutiny. The Court noted, however, the almost unprecedented nature of the challenged law in specifically targeting a particular class of individuals:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. As the Court observed, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Id. The demand that “the classification bear a rational relationship to an independent and legitimate legislative end” serves to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 632-33. The Court observed that “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” and that a law denying one group of citizens the ability “to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633. Accordingly, the Court held that the amendment was “inexplicable by anything but animus toward the class it affects,” and, as such, “lack[ed] a rational relationship to legitimate state interests.” Id. at 632. The Court has also struck down federal legislation targeted at particular groups as violative of the principles of equal protection incorporated into the Fifth Amendment’s Due
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Process Clause. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Supreme Court found that a provision of the Food Stamp Act, which excluded from participation
any household that contained an individual unrelated to any other member of the household, was
passed to prevent hippies and hippie communes from participating in the program. The group
adversely affected by the legislation—hippies—was not a “suspect class” to which strict scrutiny
would be applied. Thus, the Supreme Court applied rational basis scrutiny to the challenged
provision. It nonetheless struck it down, reasoning that:
if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, a purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the [classification].
Id. at 534-35 (citation omitted). The Court recognized that, while “[t]raditional equal protection
analysis does not require that every classification be drawn with precise ‘mathematical nicety,’”
the classification before it was “not only ‘imprecise’, it is wholly without any rational basis.” Id.
at 538.
Most recently, in striking down the Defense of Marriage Act (“DOMA”), the Supreme
Court held that “[i]n determining whether a law is motived by an improper animus or purpose,
‘[d]iscriminations of an unusual character’ especially require careful consideration.” Windsor,
133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The Court went on to state:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.
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Id. at 2693. After reviewing the history of DOMA’s enactment, the text of the statute, and its far-ranging adverse impacts on same-sex married couples, the Court found it violated the Equal Protection Clause because “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695.
B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest.
Here, the record establishes that, just like the laws in Moreno, Plyler, Cleburne, Romer, and Windsor, the Executive Order was motivated by an impermissible animus against particular classes of individuals, and thus violates the most fundamental principles of equal protection.
First, as noted in Plaintiffs’ Brief, the Executive Order restricts entry into the country and/or travel outside the country of individuals based solely on their national origin. Accordingly, even applying “the most deferential of [equal protection] standards,” the Order’s targeting of individuals from the identified countries would be permissible only if there exists a “relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632.
Second, although national origin distinctions may not seem as overtly pernicious in the area of immigration regulation, the background to the Executive Order reflects that the use of national origin designations was a surrogate for targeting individuals practicing the Muslim faith. As noted earlier, while a candidate, President Trump advocated for a complete bar on Muslims entering the United States. See Aziz v. Trump, No. No. 1:17-CV-116-(LMB/TCB), 2017 WL 580855, at *4 (E.D. Va. Feb. 13, 2017). After receiving pushback concerning the legality of his proposed Muslim Ban, then-candidate Trump telegraphed that, in order to accomplish his objective of banning Muslims while potentially subverting judicial review, he would use territories that were predominately Muslim as a surrogate for targeting Muslims directly. In
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response to a question about whether he had changed his position that Muslims should be banned, Trump stated “call it whatever you want. We’ll call it territories, OK?” Aziz, 2017 WL 580855, at *4; see also Amended Compl. ¶ 59 (“People were so upset when I used the [word] Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim”) (citing Meet the Press, NBC, July 24, 2016.) (internal quotation marks omitted).
President Trump signed Executive Order No. 13,769 on January 27, 2017. Soon thereafter, Rudy Giuliani, who advised the Trump Campaign, admitted that it was meant to effectuate the Muslim ban while circumventing judicial scrutiny. Amended Compl. ¶ 69 (“So when [Mr. Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”) (internal quotation marks omitted). In fact, hours before signing Executive Order No. 13,769, President Trump had belied its “territorial,” non-religious focus by publically stating that Christians from the seven impacted nations would be given priority as refugees. Id. at ¶ 68; see also Aziz, 2017 WL 580855, at *4. This unapologetically transparent record of the invidious motivation behind the Executive Order undermines the Government’s post hoc efforts to attribute a lawful purpose to its action.
As U.S. District Judge Brinkema of the Eastern District of Virginia concluded in enjoining the original Executive Order as violative of the establishment clause, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Aziz, 2017 WL 580855, at *8. The Court thus found that there was “direct evidence” that the Executive Order was an attempt to find a legal way to impose a ban on Muslims entering the United States. Id. at *9. The Government, however, cannot evade the strictures of the
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Constitution merely by “deferring to the wishes or objections of some fraction of the body politic.” Cleburne, 473 U.S. at 448.
After multiple courts, including the Eastern District of Virginia, stayed or preliminarily enjoined the first iteration of the order, President Trump signed the revised version that is now before the Court. Although the Executive Order at issue here eliminates some of the more egregious provisions of the prior order (e.g., it no longer applies to lawful permanent United States residents), it continues to be the means for implementing the anti-Muslim animus that gave rise to the first order. It still targets only Muslim-majority countries, and contains no legitimate justification for suspending entry into the United States of those born in those countries. In fact, Stephen Miller, a senior advisor to President Trump, declared that the Executive Order contains only “minor technical differences” from the prior order in an attempt to respond to the “flawed” and “erroneous” judicial rulings striking the first order down, and that it will “fundamentally have the same policy outcome for the country.”13
It is therefore hardly surprising that the Federal District Courts of both Hawai‘i and Maryland have concluded that the new Executive Order remains motivated by impermissible animus towards Muslims. See Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *13 (D. Haw. Mar. 15, 2017) (analyzing statements of President Trump and his administration and determining that the current Executive Order remained motivated by “religious animus”); accord Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1018235, at *13 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17,
13 Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-ban-willhave-same-basic-policy-outcome.html.
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2017).14 The Hawai‘i court in particular found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Hawai‘i, 2017 WL 1011673, at *13.
President Trump campaigned on a promise that he would institute a “Muslim Ban,” and both he and his advisors have publically stated that the Executive Order is an attempt to accomplish that ban while subverting the courts’ ability to subject it to Constitutional review. This Court should take the President and his advisors at their word. Cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 865-66 (2005) (in affirming the relevance of the background to and history of challenged legislation, the Court noted that “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions . . . .”).
C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims
Given the clear animus towards Muslims that gave rise to the Executive Order, the Supreme Court’s jurisprudence would require careful judicial examination of the stated justification for the Order, safeguarding national security, even if the Court determined that, as an executive action regarding immigration, the Executive Order is subject to rational basis review. That the Government’s justification for this policy is national security does not lessen this Court’s duty to ensure the policy is constitutional. Washington, 847 F.3d at 1163 (“[F]ederal courts routinely review the constitutionality of—and even invalidate—actions taken by the
14 In striking down the Executive Order as violative of the Establishment Clause, neither court reached the question of whether the Executive Order also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
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executive to promote national security, and have done so even in times of conflict.”).15 Any meaningful review demonstrates that the purported national security justification for the Executive Order is merely a pretext for anti-Muslim animus.
The Executive Order suspends immigrant and refugee entry into the United States of aliens from Syria, Iran, Libya, Sudan, Yemen, and Somalia for 90 days. Section 1 of the Order is titled “Policy and Purpose.” There, it states that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.” Executive Order, Section 1(h). Remarkably, the Executive Order then identifies only one such individual who was born in any of the affected countries.16 It goes on to state that “[t]he Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” However, the Executive Order makes no effort to tie these general claims about terrorism to the specific Muslim-majority countries on the Executive Order. Nor does the Executive Order afford a breakdown of whether these persons have actually committed terrorist acts, as opposed to merely having been the subject of investigations.
In fact, since 1975, not a single American has been killed in a terrorist attack by a person born in any of the six countries.17 The impacted countries also are unrelated to terrorism-related
15 See also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”) 16The Order also identifies two individuals from Iraq, a country not subject to the blanket prohibitions contained in the revised Order. 17 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumpsexecutive-order-limit-migration-national-security-reasons.
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arrests. For instance, not a single immigrant from Libya or Syria, two countries targeted by the
Executive Order, was arrested on terrorism charges between 1975 and 2015. In contrast, nine
immigrants from Croatia and eleven from Cuba, two countries unaffected by the Executive Order, were arrested on terrorism related charges in that timespan.18
Nor can the Executive Order’s singling out of the designated Muslim countries be
justified, as Section 1(d) purports to do, by citing their supposedly questionable vetting
procedures for immigrants. In a March 6, 2017 interview with CNN, Secretary of Homeland
Security John Kelly admitted that there are an additional “13 or 14 countries, not all of them
Muslim countries, not all of them in the Middle East, that have questionable vetting procedures . . . .”19 Once again, the Government merely uses these vetting procedures as a pretext for a law
targeted at Muslims. The Executive Order simply does not contain a shred of factual support for
a broad sweeping travel ban against natives of the particular identified countries.
To the contrary, recently publicized documents from the Department of Homeland
Security contradict the security justification for the Executive Order. In fact, one document is titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States.”20 In
analyzing terrorist attacks since 2011, it finds no relationship between those attacks and
citizenship:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals . . . died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization . . . . Of the 82 individuals we
18 Id. 19 Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kellytravel-ban-muslim-countries/. 20 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-contradict-travel-bantrump/98374184/.
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identified, slightly more than half were native-born United States citizens. Of the foreign born individuals, they came from 26 countries, with no one country representing more than 13.5 percent of the foreign-born total.21
The report further finds that “[r]elatively few citizens of the seven countries impacted by
[Executive Order 13,769], compared to neighboring countries, maintain access to the United
States,” and that “[f]ew of the [i]mpacted [c]ountries [h]ave [t]errorist [g]roups that [t]hreaten the
West.”22
Another memorandum from the Department of Homeland Security undercuts the other
purported justification for Executive Order, the need to enhance screening procedures for
individuals traveling from the six targeted countries. The Department of Homeland Security
memorandum questions the link between screening practices in general and preventing terrorism.
It concludes that:
We assess that most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns. We base this assessment on our findings that nearly half of the foreign-born, US-based violent extremists examined in our dataset were less than 16 years old when they entered the country and that the majority of foreign-born individuals resided in the United States for more than 10 years before their indictment or death. A separate DHS study that found that recent foreign-born US violent extremists began radicalizing, on average, 13 years after their entry to the United States further supports our assessment.23
In fact, the Executive Order’s reference to terrorist activities by the lone native of an affected
country—a Somalian refugee convicted on terrorism charges—proves the point. Executive
Order, Section 1(h). Mohamed Osman Mohamud came to the United States as a child refugee at
21 Id. at 1. 22 Id. at 2. 23 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-documentundermines-trump-case-travel-ban.
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the age of five; however, his arrest on terrorist-related charges occurred when he was 19-years old.24 As the Department of Homeland Security memorandum notes, “screening and vetting
officials” are not likely to be able to account for radicalization that occurs 14 years after entry.
Taken together, these Department of Homeland Security memoranda demonstrate the
pretextual nature of the national security justification for imposing an immigration ban on these
six Muslim-majority nations. The Department of Homeland Security does not find citizenship to
be a likely indicator of future terrorist activity and does not find enhanced screening procedures
to be an effective method of preventing terrorists from entering the country. Thus, an Order that
imposes an immigration ban on the basis of citizenship (as a pretext for religion) in order to
enhance future screening processes flies in the face of the assessment of the very government
agency charged with protecting national security from terrorist threats.
National security experts also concur that the Executive Order is not rationally related to
national security. In Aziz, the court preliminarily enjoined Executive Order 13,679 and, in doing
so, credited a declaration from 10 national security professionals who did not believe that the
Executive Order was related to any security interest. They stated:
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Aziz, 2017 WL 580855, at *3. Following the issuance of the new Executive Order, more than
130 members of American’s foreign policy establishment have issued a letter publically 24 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_bomb_plot.html.
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denouncing the travel ban as damaging to national security.25 The authors of the letter, who include former Secretaries of State John Kerry and Madeline Albright, conclude:
The revised executive order will jeopardize our relationships with allies and partners on who we rely for vital counterterrorism cooperation and information-sharing. To Muslims—including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision.26 In sum, although passed under the pretext of national security, the Executive Order does not bear any rational relationship to concerns about national security or any other legitimate government interests. Instead, as was clear by the President’s statements prior to his signing the Order, it is motivated by religious animus towards Muslims. Such a law cannot be allowed to stand in our society. As the Moreno Court recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534-45. III. CONCLUSION For the foregoing reasons, the Court should grant the requested injunction against implementation of the Executive Order.
25 Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html. 26 Id.
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DATED: March 23, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) bernabei@bernabeipllc.com Alan R. Kabat (Bar No. 464258) kabat@bernabeipllc.com Christopher Sousa (Bar No. 1018547) sousa@bernabeipllc.com BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

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 Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

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PARS EQUALITY CENTER, et al.,

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|

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Plaintiffs,

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v.

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DONALD J. TRUMP, President of the |

United States, et al.,

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Defendants.

|

|

No. 1:17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan Date: March 27, 2017

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman (D00322) Tahlia Townsend (PHV pending) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com

Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 2 of 34
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii INTEREST OF AMICI CURIAE..................................................................................................1 ARGUMENT..................................................................................................................................2 I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL
SECURITY OR FOREIGN POLICY GROUNDS.........................................................3 A. There is no national security or foreign policy basis for suspending entry of aliens
from the six named countries...................................................................................4 B. The suspension of refugee admissions is not justified by national security or
foreign policy concerns..........................................................................................10 II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS...........................12 A. The Order is of unprecedented scope.....................................................................13 B. The Order will do serious damage to our national security and foreign policy
interests. .................................................................................................................13 1. The Order will endanger U.S. troops in the field...........................................13 2. The Order will disrupt essential counterterrorism, foreign policy, and
national security partnerships. .......................................................................14 3. The Order will hinder domestic law enforcement efforts. .............................15 4. The Order will have a devastating humanitarian impact. ..............................16 5. The Order will cause economic damage to American citizens and
residents. ........................................................................................................16 III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC
STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.. .................................................17 CONCLUSION ............................................................................................................................22 APPENDIX: LIST OF AMICI
i

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TABLE OF AUTHORITIES
Cases Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __, 2017 WL
580855 (E.D. Va. Feb. 13, 2017)................................................................................................ 5 U.S. v. Fordice, 505 U.S. 717 (1992) ..................................................................................... 17, 18 Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).............................. 17 Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497, slip op. (9th
Cir. Feb. 9, 2017) ........................................................................................................................ 5
Statutes 8 U.S.C. § 1182............................................................................................................................. 19 8 U.S.C. § 1187............................................................................................................................... 9
Regulations Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962)...................................................... 20 Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981) ................................................... 13 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992) .................................................... 13 Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015) ...................................................... 13 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) .................................................... 13 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017)........................................................ 3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)......................................................... 3
Other Authorities Adams Nager, et al., The Demographics of Innovation in the United
States, Information Technology & Innovation Foundation (Feb. 2016) .................................. 17 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on
Immigration, CATO at Liberty (Jan. 25, 2017).................................................................... 4, 11 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute
(Sept. 13, 2016)..................................................................................................................... 5, 10
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Alex Nowrasteh, 42 Percent of 'Terrorism-Related' Convictions Aren't for Terrorism, Cato Institute (Mar. 6, 2017) .................................................................................... 5
Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015) ................................................................................................................................... 11
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv. (2016)................................................................................................................. 8
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv. (2006) .......................................................................... 12
Annex of Statistical Information, Country Reports on Terrorism (June 2015) .............................. 6
Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d __, 2017 WL 526497 (9th Cir. Feb. 9, 2017).................................................................................................. 17
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008)................................................................................................... 22
Central Intelligence Agency, 11 September 2001 Hijackers .......................................................... 5
Edward Alden, The Closing of the American Border 104-06 (2008) ........................................... 19
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017)................................................................................................... 19, 20
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017) ........................................................ 5
Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017)......................................... 20
George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015)................................................................................................ 5
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act: Provisions and Funding (2016) ................................................................................................ 18
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017) ........................................................................................................................... 15
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017) ................................................... 8, 19
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017) ............................................ 19
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Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017) .................................................................................................................. 14
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016) .............................................................................. 15
Martha Nussbaum et al., White House Creates Confusion About Future of Trump's Travel Ban, Politico (Feb. 21, 2017) ...................................................................... 3, 21
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001) ............................................................................................................................ 19
Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017) ...................................................... 19, 20
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017)...................................................................... 15
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007) .............................................................................. 5
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012) ................................................................................................................................ 15
Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017).......................................................................................... 5
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017) ....................................................... 17
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ......................... 5
Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017).................................................................. 14
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ............................... 8
Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).......................................................................... 4
Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017) ............................................................................................................... 14
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs) ............................................... 8
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The Security of U.S. Visa Programs: Hearing Before the S. Comm on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña) ................................................................................................. 7
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015) .................................... 9 Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A Staff Report of the
National Commission on Terrorist Attacks Upon the United States (2004)............................. 19 U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for
the Visa Waiver Program (Feb. 18, 2016).................................................................................. 9 U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services
(Dec. 3, 2015) ........................................................................................................................... 11 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel
and Tourism Expenditures (Dec. 15, 2016) .............................................................................. 16 U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions
for Fiscal Year 2016 (2016)...................................................................................................... 14 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian
Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016) .................................................. 12 U.S. Dep’t of State, The Refugee Processing and Screening System ............................................. 4 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs .................................................... 11 U.S. Dep’t of State, Visa Waiver Program..................................................................................... 9 U.N. High Commissioner for Refugees, Resettlement ................................................................. 12 Urban Justice Center, International Refugee Assistance Project, IRAP Stands With
Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017) .......................... 14 William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at
Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009) ...................................................... 18
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INTEREST OF AMICI CURIAE Amici curiae are former national security, foreign policy and intelligence officials who have worked on pressing national security matters in the U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the original January 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Order”), and weeks before the new March 6, 2017 Executive Order bearing the same title (“March 6 Order”). On February 16, 2017, amici filed an amicus brief in Darweesh v. Trump in the U.S. District Court for the Eastern District of New York, expressing our view that the January 27 Order “cannot be justified on national security or foreign policy grounds” and “would undermine the security of the United States.” Amici have reached the same conclusion about the March 6 Order, which presents and preserves the same core problems as its predecessor. Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. Amici nevertheless do not believe that risk merits the blanket and counterproductive bans on entry into the United States established by the Orders, either in its original form or as revised.
ARGUMENT The March 6 Order serves no persuasive national security or foreign policy purpose. Left in place, the Order will do long-term damage to our national security and foreign policy interests. It will endanger troops in the field, and disrupt key counterterrorism and
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national security partnerships. It will aid the propaganda effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its recruitment message. By feeding the narrative that the United States is at war with Islam, the Order will impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism. And it will have a damaging humanitarian and economic impact.
Indeed, the March 6 Order preserves the same problematic features of the January 27 Order that were outlined in the original brief filed by many of the same amici in Darweesh. The March 6 Order continues to impose a blanket ban on entry from the listed countries that cannot be justified on national security or foreign policy grounds. The March 6 Order continues to depart from the particularized review based on credible intelligence-based threats that has been a core premise of our border security efforts across decades of administrations led by Presidents from both parties. And rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” did not disguise the January 27 Order’s discriminatory intent, or make it necessary, effective or faithful to America’s Constitution, laws, and values. The few changes that were introduced in the March 6 Order do not cure this discriminatory intent, or suddenly provide a persuasive basis for the Order on national security or foreign policy grounds.
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I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL SECURITY OR FOREIGN POLICY GROUNDS. On January 27, 2017, President Donald Trump signed an executive order imposing a
number of suspensions on the entry of non-citizens into the United States.1 The President’s stated goals for the Order were to “protect[] the nation from foreign terrorist entry into the United States” and to “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”2 On March 6, 2017, following weeks of litigation, the Administration issued a revised version of the Executive Order.3 This March 6 Order revokes the January 27, 2017 Order and makes several changes to that Order, including exempting green card holders and valid visa holders from the immigration restrictions and removing Iraq from the list of excluded countries. However, the Order continues to suspend travel from the listed countries for 90 days from its effective date. The Order continues to suspend refugee admissions for 120 days.4 And in the words of a senior advisor to President Trump, the Order still aims to guarantee the “same basic policy outcome.”5
As former U.S. officials responsible for the national security and foreign relations of the United States in multiple presidential administrations, amici have devoted their careers to the safety and welfare of the American people. Yet the March Order continues to bear no rational relation to the President’s stated aim of protecting the nation from foreign terrorism. It
1 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 2 Id. 3 Exec. Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017). 4 A redlined comparison of the two Orders can be found at: http://aclum.org/wpcontent/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-BanEO.pdf. 5 Matthew Nussbaum et al., White House Creates Confusion About Future of Trump’s Travel Ban, Politico (Feb. 21, 2017).
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targets countries whose nationals have committed no lethal terrorist attacks on U.S. soil in the last forty years. It suspends the entry of refugees—the vast majority of whom are vulnerable women and children6—when in the modern era of screening, no refugee has ever killed a U.S. citizen in a terrorist attack in the United States.7
Even now, weeks after the signing of the original January 27 Order, Respondents have supplied no persuasive information that would justify such a categorical ban, even in this revised form. They make no showing that our immigration system has suffered from inadequate consideration of national origin or religious affiliation, and identify no flaw in the current individualized vetting procedures—developed by national security officials across several presidential administrations in response to particular threats identified by U.S. intelligence.
A. There is no national security or foreign policy basis for suspending entry of aliens from the six named countries.
No legitimate national security purpose is served by the Order’s blanket ban on entry into the United States of nationals of Syria, Sudan, Iran, Somalia, Libya, and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years.8 The January Order opened with a reference to the September 11, 2001 attacks, and White House officials have since pointed to those attacks as justification for its restrictions.9 But none of the September 11 hijackers were citizens of the
6 U.S. Dep’t of State, The Refugee Processing and Screening System, https://www.state.gov/documents/organization/266671.pdf. 7 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh Jan. 2017”] 8 Id. 9 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).
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six targeted countries.10 In fact, multiple studies show that the overwhelming majority of
individuals who were charged with—or who died in the course of committing—terrorist-related
crimes inside the United States since September 11 have been U.S. citizens or legal permanent
residents.11
The U.S. government provided no evidence to the contrary in its initial January 27
Order.12 The March 6 Order now offers the assertion that “[s]ince 2001, hundreds of persons
born abroad have been convicted of terrorism-related crimes in the United States.” The Order
does not actually cite any support for this statement. But a similar set of data—relied on by
White House officials in recent weeks to justify the initial January 27 Order—has been widely
criticized for its definition of terrorism-related offenses, among other issues.13
Second, Respondents have identified no persuasive basis for believing that a heightened
or particularized future threat has suddenly arisen from the six named countries. The January 27
Order was unable to muster any such explanation at all. The March 6 Order offers a series of
10 Central Intelligence Agency, 11 September 2001 Hijackers, https://www.cia.gov/newsinformation/speeches-testimony/2002/DCI_18_June _testimony_new.pdf. 11 See Peter Bergen et al., Terrorism in America After 9/11, New America Foundation, www.newamerica.org/in-depth/terrorism-in-america/; George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017); Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016) [hereinafter “Nowarsteh Sept. 2016”]. 12 See Washington v. Trump, No. 17-35105, __ F.3d __ at 26, 2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __ at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). 13 See, e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007); Nowaresteh Jan. 2017, supra note 7; Alex Nowrasteh, 42 Percent of ‘Terrorism-Related’ Convictions Aren’t for Terrorism, Cato Institute (Mar. 6, 2017).
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excerpts from the 2015 Department of State Country Reports on Terrorism and elsewhere, describing how these nations are home to violent extremist groups, and do not cooperate in U.S. counterterrorism efforts. However, the Country Reports only once again confirm the imprecision of the country bans in the Order: They point out, for example, that more than 55 percent of all terrorist attacks in 2015 took place in only five countries (Iraq, Afghanistan, Pakistan, India and Nigeria), none of which are subject to the travel ban.14 At any rate, the Order does not plausibly make the case that the threat has recently increased from these areas of the globe such that a sudden country-based ban is needed, or that a suspension of travel will lead to improved counterterrorism efforts or information sharing with these countries. And as amici explain later, there is actually ample reason to believe the Order will compromise our security programs.
The only other evidence cited by the Order for this proposition is a pair of anecdotal cases in which individuals who were originally refugees from the listed countries were later sentenced for terrorism-related crimes. But, one of those cases involved terror activities undertaken before the individual came to the United States, not acts on U.S. soil, and the current procedures already have been fully reviewed and revised to address the issues raised by that entry. The other individual was unable to execute on his plans at all, and in any event was admitted as a small child, and so it is difficult to see how a suspension of travel to improve the vetting process would have affected his entry, since he was radicalized here in the United States. And of course, the mere mention of these two cases hardly refutes the multiple, careful analyses cited earlier showing that they are very much the exception rather than the rule.15
14 Annex of Statistical Information, Country Reports on Terrorism 2015 (June 2016). 15 See supra note 11.
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A number of amici were current on active intelligence concerning all credible terrorist threat streams directed against the United States as of January 20, 2017. They know of no specific threat—just weeks later—that would have justified the January 27 ban on travel from these six countries. Amici are unaware of any new national security basis for a ban on six of those countries that might suddenly have surfaced in the weeks between that Order and the more recent March 6 ban.
Third, Respondents have identified no flaw in existing procedures that would justify the bans in the Order. Since the September 11, 2001 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting system is applied to travelers not once, but multiple times, and it is continually re-evaluated to ensure its effectiveness. Successive administrations have strengthened the vetting process through robust information-sharing and data integration. This approach allows the government to identify potential terrorists without resorting to blanket bans.16
Respondents offer no reason to move abruptly to a national origin-based ban, when the United States already has such a tested system of individualized vetting, developed and implemented by national security professionals across the government. In fact, information continues to surface that confirms that country-based bans are the wrong approach. For instance, since the initial Order was issued in January, a document surfaced from within the Department of Homeland Security itself, prepared in response to a request from the new Administration. The
16 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña), https://www.hsgac.senate.gov/hearings/the-security-of-us-visa-programs.
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document confirms that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”17
Finally, the Order cannot be defended as a mere continuation of recent U.S. counterterrorism policy. Because threat streams constantly evolve, amici sought continually to improve vetting when serving as national security officials. That effort included reviews in 2011 and 2015-16, when the U.S. government acted in response to particular threats identified by intelligence sources. In 2011, after receiving derogatory information regarding two Iraqi nationals who had entered the United States as refugees, the U.S. government undertook an extensive interagency review of its vetting system. The flow of refugees from Iraq slowed during the pendency of the review,18 and upon completion of the review, the U.S. government implemented new, stronger security procedures in areas of identified vulnerability.19
Likewise, in late 2015 and early 2016, in response to the emerging threat posed by ISIL, the U.S. government took several steps to strengthen the Visa Waiver Program, which allows citizens from thirty-eight approved countries to travel to the United States without first obtaining a visa. President Obama introduced a series of new measures to enhance security screenings and
17 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States [hereinafter “Citizenship Unlikely”], available at https://assets.documentcloud.org/documents/3474730/DHSintelligence-document-on-President-Donald.pdf. 18 Refugee Processing Center, Interactive Reporting, http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017). 19 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs), https://www.hsgac.senate.gov/hearings/ten-years-after-9/11preventing-terrorist-travel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv., 14 (2016).
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traveler risk assessments in the program and bolster our relationship with partner countries.20 Around the same time, President Obama signed into law a statute that removed from the Visa Waiver Program those nationals of existing Visa Waiver Program countries who: (1) had been present in Iraq, Syria, Iran or Sudan after March 1, 2011, or (2) were dual nationals of one of those four countries.21 Several months later, the Secretary of Homeland Security—acting under the new statute and in consultation with the Director of National Intelligence and the Secretary of State—expanded the list of four countries to include Yemen, Libya and Somalia.22
Contrary to Respondents’ claims, these previous reforms provide no justification for a blanket, group-based ban on the entry of nationals from these six countries. The enhancement of security in the refugee system allowed for more searching, individualized vetting of travelers, the opposite of the categorical ban in this Order. Similarly, the reforms to the Visa Waiver Program did not automatically bar anyone—including nationals of any country—from travel to the United States. The affected individuals were simply required to obtain individually-vetted visas before entering the United States, just as nationals from the more than 150 other nations not currently part of the Visa Waiver Programs must do.
To keep our country safe from terrorist threats, the U.S. government must gather all credible evidence about growing threat streams—including through the best available
20 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/30/fact-sheet-visa-waiverprogram-enhancements; U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram. 21 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. 22 The exemptions for Yemen, Libya and Somalia only applied to those who had traveled to or been present in one of those countries, not dual nationals. U.S. Dep’t of Homeland Security, supra note 20.
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intelligence—to thwart those threats before they ripen. Through the years, national securitybased immigration restrictions have: (1) responded to specific, credible threats based on individualized information, (2) rested on the best available intelligence, and (3) been subject to thorough interagency legal and policy review. The present Order does not rest on such tailored grounds, but rather on (1) generalized bans, (2) that are not supported by any new intelligence that Respondents have cited or of which amici are aware, and (3) were not vetted through careful interagency legal and policy review.
B. The suspension of refugee admissions is not justified by national security or foreign policy concerns.
The March 6 Order’s 120-day ban on refugee admissions serves no national security or foreign policy purpose. Amici know of no factual basis for Respondents’ claim that refugees pose a particular security threat to the United States that would justify the Order’s categorical bans.
From 1975 to the end of 2015, over three million refugees have been admitted to the United States. According to a recent study, only three have killed people in terrorist attacks on U.S. soil.23 All three were Cuban refugees, who murdered three people in two attacks in the 1970s. Critically, these refugees were admitted and carried out their crimes before the creation of the modern refugee vetting system in 1980.24 No refugee has killed an American in a terrorist attack in the United States since that system was put in place.25 According to the study, over that
23 Nowrasteh Sept. 2016, supra note 11. 24 Id. 25 Id.
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same period, only twenty refugees were convicted of any terrorism-related crimes on U.S. soil at all.26
In fact, refugees already receive the most thorough vetting of any travelers to the United States.27 Refugee candidates are vetted recurrently throughout the resettlement process, as “pending applications continue to be checked against terrorist databases, to ensure new, relevant terrorism information has not come to light.”28 By the time refugees referred by the United Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the United States, they have been reviewed not only by UNHCR but also by the National Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State and the U.S. intelligence community more broadly.29
The refugee vetting process is also reviewed and strengthened on an ongoing basis in response to particular threats.30 For Syrian applicants, the Department of Homeland Security recently added a layer of enhanced review that involves collaboration between the Refugee, Asylum, and International Operations Directorate and the Fraud Detection and National Security
26 Id. (“The chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year”); see also Nowrasteh Jan. 2017, supra note 7. 27 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs, https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm. 28 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/11/20/ infographic-screening-process-refugee-entry-united-states. 29 U.S. Dep’t of State, supra note 28. 30 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015), https://www.uscis.gov/sites/default/files/ USCIS/Refugee%2C%20Asylum%2C%20and%20Int%27l%20Ops/Refugee_Security_Screenin g_Fact_Sheet.pdf.
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Directorate. Among other measures, this review provided additional, intelligence-driven support to refugee adjudicators that U.S. officials could then use to more precisely question refugees during their security interviews.31 Respondents allege no specific information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most important step, additional considerations make the U.S. refugee system difficult for terrorists to exploit. Under current vetting procedures, refugees often wait eighteen to twenty-four months to be cleared for entry into the United States.32 Further, of all refugees determined by the UNHCR to be eligible for resettlement, less than one percent were resettled in any country at all in 2015,33 meaning that a would-be terrorist posing as a refugee has very little chance of being resettled anywhere, let alone the United States. Finally, the UNHCR resettlement program places refugees in dozens of countries, and refugees do not decide where they are resettled or which country accepts them, meaning that the odds of any individual refugee being settled into the United States in particular are exceedingly low. II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS. The March 6 Order’s overreach will do lasting harm to the national security and foreign policy interests of the United States.
31 U.S. Dep't of State, supra note 6; Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv., 4-5 (2016). 32 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016), https://www.state.gov/j/prm/releases/factsheets/2016/254649.htm. 33 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html.
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A. The Order is of unprecedented scope. We know of no case where a President has invoked authority under the Immigration and Nationality Act to suspend admission of such a sweeping class of people. Even after the September 11 attacks, the U.S. government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin or religious affiliation. Across the decades, executive orders under the Immigration and Nationality Act usually have targeted specific government officials,34 undocumented immigrants35 or individuals whose personalized screenings indicated that they posed a national security risk.36 And above all, no example in the modern era even approaches the sheer breadth of this Order, which with one stroke of the pen bans more than 180 million people in six separate countries from traveling to the United States based solely on their national origin. B. The Order will do serious damage to our national security and foreign
policy interests. The Order will harm the interests of the United States in a number of respects.
1. The Order will endanger U.S. troops in the field. The Order will affect interpreters and others who have assisted our troops at great risk to their own lives. While Iraq has been removed from the list of banned countries, the Order halts the entire U.S. Refugee Assistance Program for 120 days for all countries. This pause will affect tens of thousands of individuals who assisted the United States and who are waiting for
34 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996). 35 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981). 36 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).
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admission under the already backlogged “Priority 2” program.3738 The removal of Iraq from the Order, therefore, does not eliminate the effects its citizens – our key partners – will feel. By discouraging future assistance and cooperation from these and other affected military allies and partners, the Order will jeopardize the safety and effectiveness of our troops.
2. The Order will disrupt essential counterterrorism, foreign policy, and national security partnerships.
The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our country’s efforts to address the threat posed by terrorist groups such as ISIL. The Order has already sparked intense international criticism and alienated U.S. allies and partners. Countries in the Middle East expressed disapproval and even threatened and engaged in reciprocity in response to the January 27 Order, jeopardizing years of diplomatic outreach.39 We can certainly anticipate a similar reaction to the current order, if it is permitted to go into effect.
The Order will also endanger U.S. intelligence sources in the field. For up-to-date information, our intelligence officers often rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep
37 The “Priority 2” program provides an alternative to the now closed Special Immigrant Visa program. 38 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center, International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017). 39 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017); The Guardian, UN says Trump’s revised travel ban will worsen plight of refugees (Mar. 7, 2017); Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017).
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Americans safe—and whom our officers had promised to protect.40 Finally, by suspending visas, this Order halts the collection of important intelligence that occurs during visa screening processes, information that can be used to recruit agents and identify regional trends of instability.41
3. The Order will hinder domestic law enforcement efforts. Domestic law enforcement relies heavily on partnerships with American Muslim communities to fight homegrown terrorism.42 One report found that in the years since September 11, 2001, Muslim communities have helped U.S. security officials prevent nearly two out of every five Al-Qaeda plots threatening the United States.43 By alienating MuslimAmerican communities in the United States, the Order will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando. The Order’s disparate impact on Muslim travelers and immigrants also feeds ISIL’s propaganda narrative and sends the wrong message to the Muslim community at home and abroad: that the U.S. government is at war with them based on their religion. Less than a day after President Trump signed the January 27 Order, jihadist groups began citing its contents in recruiting messages online.44 The revised Order may even endanger Christian communities
40 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017). 41 This process is particularly important in countries like Iran and Libya, where internal conflict or lack of diplomatic ties limit on-the-ground intelligence collection. 42 Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016). 43 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post-911-Terrorism-Data.pdf. 44 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017).
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 22 of 34
overseas, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war.
4. The Order will have a devastating humanitarian impact. The Order will have a devastating humanitarian impact. First and foremost, the Order will disrupt the travel of men, women and children who have been victimized by actual terrorists. Next, tens of thousands of other travelers today face deep uncertainty about whether they may travel to or from the United States for reasons including medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows the Secretaries of State and Homeland Security to admit travelers from targeted countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. Finally, closing our borders to refugees who otherwise would have had the opportunity to resettle in the United States will keep them in dangerous conditions and shift the burden to overstretched allies who are currently accepting far more than their fair share of refugees.
5. The Order will cause economic damage to American citizens and residents.
Finally, the Order will affect many foreign travelers who annually inject hundreds of billions of dollars into the U.S. economy, supporting well over a million U.S. jobs.45 Since the initial Order was issued, dozens of affected companies have noted the damaging impact the travel ban can be expected to have on strategic economic sectors including defense, technology,
45 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/press-releases/2016/department-ofcommerce-releases-october-travel-tourism-expenditures-121516.asp.
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 23 of 34
and medicine.46 About a third of U.S. innovators were born outside the United States, and their
scientific and technological innovations have contributed to making our nation and the world safe.47 The harm caused by the ban to the economic dynamism of our country will carry long-
term negative and serious consequences for our national security.
III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.
The Supreme Court has observed that “[d]epartures from the normal procedural sequence
. . . might afford evidence that improper purposes are playing a role” in government action. Vill.
Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977). What is more, this
evidence cannot be cured by a later-in-time order that preserves the essential features of the first.
See U.S. v. Fordice, 505 U.S. 717 (1992) (holding that Mississippi’s re-classification of its state
colleges and universities in ways that were facially neutral but perpetuated racial segregation
continued to violate Brown v. Board of Education); Vill. Of Arlington Heights, 429 U.S. at 267
(noting that the “specific sequence of events leading up the challenged decision also may shed
some light on the decisionmaker's purposes”).
In this situation, the process that produced the January 27 Order departed from the
traditional national security policy-making process, with little to no consultation or scrutiny
46 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497 (9th Cir. Feb. 9, 2017). 47 Adams Nager, et al., The Demographics of Innovation in the United States, Information Technology & Innovation Foundation 29 (Feb. 2016), http://www2.itif.org/2016-demographicsof-innovation.pdf. Iran’s universities, for example, have produced an “inordinate amount of intellectual talent in computer science and cybersecurity.” These scientists are drawn to universities in the United States, where their research is then used by entities such as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trump-immigration-ban-cybersecurity-iran-protests/.
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across the Departments of State, Justice, Homeland Security or the Intelligence Community. And while further thought no doubt went into the March 6 Order, on its face it seems clear that that order was carefully structured to mimic the old ban as closely as possible. As Justice Thomas explained in U.S. v. Fordice, “if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear – clear enough to presume conclusively – that the State has failed to disprove discriminatory intent.” Fordice, 505 U.S. at 747 Thomas, J., concurring).
In every recent administration, Presidents considering a change to immigration policy have followed an interagency review process that allows security professionals to ensure that all relevant uncertainties are addressed by policy and legal experts, appropriate preparations are made for implementation, and any potential risks are effectively mitigated. Before recommendations are submitted to the President, the National Security Council oversees a legal and policy process that typically includes the following important components: a review by the career professionals in institutions of the U.S. government charged with implementing an order; a review by the career lawyers in those institutions to ensure legality and consistency in interpretation; and a senior policy review across all relevant agencies, including Deputies and Principals at the cabinet level.48
48 This is no less true of executive orders issued at the start of a new presidency. See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act: Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009).
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This practice of interagency deliberation has been followed even—and especially—in
times of national emergency in order to set temporary exclusions or establish criteria for
admission to the United States. In the immediate aftermath of the September 11, 2001 attacks,
when the Bush Administration considered whether the President should invoke 8 U.S.C. §
1182(f) to bar certain immigrants or take other actions to secure the border, officials engaged in consultations across the national security agencies to arrive at a decision.49 The reexamination of the vetting system in 201150 and the security reforms to the Visa Waiver Program in 2015-1651
reflect similar interagency consultation.
The process that produced the January 27 Order departed sharply from this standard
practice. We know of no process underway before January 20, 2017 to change current
immigration vetting procedures. According to extensive reporting, Respondents followed no such process in producing the January 27 Order.52 Nor, apparently, did the White House consult
officials from any of the seven agencies tasked with enforcing immigration laws, much less the
congressional committees and subcommittees that oversee them. There is every indication that
49 Edward Alden, The Closing of the American Border 104-06 (2008); Thomas R. Eldridge, et al., 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks Upon the United States 151-54 (2004); Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001). 50 Jon Finer, supra note 19. 51 See supra notes 21-23 and surrounding text. 52 The Secretary of Homeland Security reportedly received his first full briefing as the President signed the January 27 Order. Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017). The Secretary of Defense was neither consulted during the drafting of the order nor given an opportunity to provide input. Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017). Most State Department officials reportedly first heard of the Order through the media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017).
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that Order received little, if any, advance scrutiny by the Departments of State, Justice, Homeland Security or the intelligence community.53
As telling, the January 27 Order was apparently issued without interagency legal process. In recent history, administrations of both political parties have followed a protocol of submitting proposed Orders to the Attorney General, the Justice Department’s Office of Legal Counsel (“OLC”) and all other agency legal offices involved with enforcing the law.54 Legal review by multiple agencies helps to identify potentially unforeseen legal implications of an order, determines the lawfulness of the proposed action, and analyzes whether the proposed language has established legal meaning that can be interpreted consistently with other laws and regulations. Here, the White House reportedly never asked the Department of Homeland Security for legal review in advance of the Order being promulgated, so “[t]he Department . . . was left making a legal analysis on the order after [President] Trump signed it.”55 Unsurprisingly, the January 27 Order contained numerous ambiguities and inconsistencies that immediately caused confusion, forcing implementing agencies to improvise and the White House to reverse itself at least once.56
Although the White House apparently brought more agencies into the fold in the days leading up to the March 6 Order, whatever process took place after January 27, 2017 plainly was meant to preserve the same structure, substance and purpose of the original flawed executive
53 Customs and border officials reported that their superiors could not provide clear guidance about the new policy. Shear & Nixon, supra note 53; see also Allen & O’Brien, supra note 53 (quoting CBP chief of passenger operations at John F. Kennedy International Airport declaring, “[w]e are as much in the dark as everybody else.”). 54 See, e.g., Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962). 55 Perez et al., supra note 53; Shear & Nixon, supra note 53. 56 Allen & O’Brien, supra note 53; Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017).
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 27 of 34
order. Indeed, White House political advisor Stephen Miller admitted that the March 6 Order would reflect “mostly minor technical differences,” and achieve “the same basic policy outcome for the country,” statements that were echoed by other senior officials.57
Ultimately, there continues to be scant evidence that the country-based approach that is maintained in this Order emerged from the considered perspective of national security experts from across multiple affected agencies. In fact, a document that recently surfaced from the Department of Homeland Security shows just the opposite. When DHS officials were asked by the new administration to identify the terrorist threat from the listed countries, they reached two critical conclusions: that citizenship is likely an unreliable indicator of terrorist threat, and that few of the listed countries are home to terrorist groups that threaten the west.58 To this moment, the Administration has yet to explain how the country-based bans established here work effectively to forestall terrorist threats or why there are not more narrowly tailored measures available to address our country's national security concerns.
57 Matthew Nussbaum et al., supra note 5. 58 Citizenship Unlikely, supra note 18.
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CONCLUSION Ours is a nation of immigrants, committed to the faith that we are all equal under the law and that we abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, amici sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, a system that applies no religious tests and that measures individuals by their merits, not by stereotypes of countries or groups. Unjustified blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that amici took oaths to protect. Although our nation was founded by immigrants fleeing religious persecution, the Order discriminates based on religion. Although our Constitution enshrines the principle that all are equal under the law, the Order discriminates on the basis of national origin. And although the United States accepted over four million refugees in the decades after World War II,59 the Order willfully ignores the greatest refugee crisis since that time. Allowing the March 6 Order to take effect would wreak havoc on our nation’s security and deeply held American values and would threaten innocent lives. Blocking the Order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still subjecting travelers to all the rigorous legal vetting processes that are currently in place.
59 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 29 of 34

For all of these reasons, amici support the Plaintiffs in seeking to block the March 6

Order from going into effect.

Respectfully Submitted,

________/s/_________

Harold Hongju Koh

Jonathan Freiman (D00322)

Hope Metcalf

Tahlia Townsend (PHV pending)

RULE OF LAW CLINIC

WIGGIN AND DANA LLP

Yale Law School

265 Church Street

127 Wall Street, P.O. Box 208215

P.O. Box 1832

New Haven, CT 06520-8215

New Haven, CT 06508-1832

203-432-4932

203-498-4584

jfreiman@wiggin.com

Counsel for Amici Curiae

 We are grateful to Phil Spector, Danieli Evans, Clare Ryan, and the student members of the Yale Law School Rule of Law Clinic—Benjamin Alter, Colleen Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad, Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg, Tianyi Xin, and Nathaniel Zelinsky—for their contributions to this submission. Yale Law School’s Rule of Law Clinic is organized separately from the school’s Jerome N. Frank Legal Services Organization (“LSO”), a counsel for petitioners in a separate challenge to the original executive order. No counsel authored this brief in whole or in part; no party or party’s counsel contributed money intended to fund preparing or submitting this brief; and no person, other than amici, their members, and counsel, contributed money that was intended to fund preparing or submitting this brief. The views expressed by Yale Law School’s legal clinics are not necessarily those of the Yale Law School.
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 30 of 34
APPENDIX: LIST OF AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. John R. Allen served as Special Presidential Envoy for the Global Coalition to Counter ISIL from 2014 to 2015. Previously, he served as Commander of the International Security Assistance Force and U.S. Forces Afghanistan.
3. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
4. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
5. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
6. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.
11. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S.
a

Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 31 of 34
Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
13. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
14. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
15. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
16. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
17. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.
18. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.
19. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
20. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
21. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
22. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
23. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.
24. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 32 of 34
25. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
26. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
27. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
28. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
29. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
30. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
31. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
32. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
33. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
34. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
35. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
36. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
37. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
c

Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 33 of 34 38. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011. 39. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department. 40. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
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Case 1:17-cv-00255-TSC Document 58 Filed 03/31/17 Page 34 of 34
CERTIFICATE OF SERVICE
I, Jonathan Frieman, hereby certify that on March 27, 2017, the foregoing document was
filed and served through the CM/ECF system.
________/s/_________ Jonathan Freiman (D00322) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com
Counsel for Amici Curiae

 
 Case 1:17-cv-00255-TSC Document 59 Filed 03/31/17 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Case No. 1:17-cv-00255-TSC Electronically Filed

BRIEF FOR THE FOUNDATION FOR THE CHILDREN OF IRAN, CHILDREN OF PERSIA AND IRANIAN ALLIANCES ACROSS BORDERS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Dated: March 28, 2017

Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

Case 1:17-cv-00255-TSC Document 59 Filed 03/31/17 Page 2 of 29
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF THE AMICI CURIAE ............................................................................................1 BACKGROUND .............................................................................................................................3
I. Azar and Ahmad .......................................................................................................5 II. Banu and Basir.........................................................................................................7 III. Dr. David Overman..................................................................................................8 IV. Dalir .........................................................................................................................8 SUMMARY OF ARGUMENT .....................................................................................................10 ARGUMENT .................................................................................................................................12 I. The Executive Order’s Travel Ban Is Irrational. ...................................................12
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough................................................................................................... 12
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban. ......................15
III. The President’s Statutory Authority Under Section 212(f) of the INA Does Not Justify the Executive Order.............................................................................20
CONCLUSION ..............................................................................................................................24

Case 1:17-cv-00255-TSC Document 59 Filed 03/31/17 Page 3 of 29

TABLE OF AUTHORITIES

Cases

Page(s)

Aziz v. Trump, __ F. Supp. 3d ___, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ............................................................................................................4

* City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...........................................................................................................18, 20

* Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332 (1994).................................................................................................................21

* Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947).................................................................................................................23

Hawai‘i v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)...........................4, 16

Int’l Refugee Assistance Project v. Trump, __ F. Supp. 3d ___, No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017)........................................................................................................4, 16

Jimenez v. Weinberger, 417 U.S. 628 (1974).................................................................................................................12

Mathews v. Diaz, 426 U.S. 67 (1976)...................................................................................................................12

McDonnell v. United States, 136 S. Ct. 2355 (2016) .............................................................................................................22

Miller v. Alabama, 132 S. Ct. 2455 (2012) .............................................................................................................18

Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .................................................................................................12

Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................12

* Romer v. Evans, 517 U.S. 620 (1996)...........................................................................................................13, 16

Rust v. Sullivan, 500 U.S. 173 (1991).................................................................................................................23

ii

Case 1:17-cv-00255-TSC Document 59 Filed 03/31/17 Page 4 of 29
* U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973)...........................................................................................................12, 13
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................4
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................23
Statutes 8 U.S.C. § 101................................................................................................................................23 8 U.S.C. § 1151..............................................................................................................................23 8 U.S.C. § 1153..............................................................................................................................23 8 U.S.C. § 1182(a) .........................................................................................................................21 *8 U.S.C. § 1182(f)......................................................................................................11, 20, 21, 22 8 U.S.C. § 1201(g) .........................................................................................................................13 Other Authorities 22 C.F.R. § 41.31(a)(3) ..................................................................................................................14 51 Fed. Reg. 30,470 (Aug. 22, 1986).............................................................................................23 Executive Order No. 13769 ................................................................................................... passim Executive Order No. 13780 ................................................................................................... passim Fed. R. App. P. 29(a)(4)(E)..............................................................................................................1 LCvR 7(o) .......................................................................................................................................1 * Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief (Cong. Res.
Serv. Jan. 23, 2017) .................................................................................................................23 Norman Singer & Shambie Singer,
2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016) .........................................................................................23
iii

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INTEREST OF THE AMICI CURIAE1 Amicus The Foundation for the Children of Iran (FCI) is a 501(c)(3) organization that helps arrange health-care services, including life-saving treatments, for Iranian children and children of Iranian origin. Based in Bloomington, Minnesota, FCI relies on a global network of volunteers to serve the needs of as many children as possible, regardless of race, creed, religious belief, or political affiliation. Essential to FCI’s mission is the ability of children residing in Iran and their parents to travel to the United States on non-immigrant visas over the course of several years to obtain the critical medical treatment that they need. Amicus Children of Persia (COP) is a 501(c)(3) charitable organization based in Maryland that supports disadvantaged Iranian children and their families in Iran and around the world. COP has helped rebuild earthquake-damaged schools in Iran, delivered equipment to Iranian hospitals, and provided food, clothing and medical care to disadvantaged children in Iran. COP also provides scholarships to college students of Iranian descent in the United States. COP’s charitable work in Iran frequently requires its members to travel between Iran and the United States. Amicus Iranian Alliances Across Borders (IAAB) is a 501(c)(3) organization based in New York City that seeks to strengthen America’s Iranian diaspora community through leadership and educational programming that encourages collaboration and solidarity across borders and multiple communities. IAAB includes over a thousand members of Iranian descent or nationality and works by empowering members of the Iranian diaspora community to deepen
1 No parties’ counsel authored this brief in whole or in part, no party or its counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici or their counsel contributed money that was so intended. See LCvR 7(o)(5); Fed. R. App. P. 29(a)(4)(E). Amici describe their authority to file in the concurrently filed motion in accordance with LCvR 7(o)(1)-(2).
1

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connections with their new communities while continuing to maintain their roots. These activities rely in large part on the ability of IAAB members to travel between the United States and Iran, including on non-immigrant student visas.
The Executive Order at the heart of this case, Executive Order No. 13780 (“Executive Order” or “the Order”), which supersedes a prior version of the same policy, Executive Order No. 13769 (“the Prior Order”), poses a grave threat to amici and their respective missions. Among other things, with certain limited exceptions for government officials, the Executive Order bars any Iranian national (as well as nationals of Libya, Somalia, Sudan, Syria and Yemen, with whom amici stand in solidarity)2 from entering the United States for a period of at least 90 days. See Executive Order, § 2(c). Those affected by the Order include Iranian nationals who have previously been allowed to enter the United States on student, work or visitor visas, and who will need to renew or reapply for those visas when their current entry authorizations expire. Many of amici’s members and other constituents, as well as their relatives and friends, have found their ability to travel severely curtailed as a result. For some, the consequences of the Executive Order’s restrictions could be severe: for the children served by amicus FCI, for example, their ability to travel to the United States for life-saving medical care is a matter of lifeor-death.
Given both the vital importance of the legal questions presented to their members and other constituents, amici have a strong interest in supporting the allowance of plaintiffs’ motion for a preliminary injunction, and are well-positioned to explain why that result is the correct one. To that end, amici have included in this brief not only legal arguments, but also personal stories
2 The Prior Order also banned the entry of Iraqi nationals. The current Order does not categorically ban the entry of such persons, but subjects them to “additional scrutiny” when they apply for visas, admission, or other immigration benefits, “including, as appropriate, consultation with a designee of the Secretary of Defense.” Executive Order, §§ 1(g), 4.
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of Iranians concerning the extensive screening procedures to which they already were subjected
before entering the United States, and the harm that these individuals suffered and continue to suffer under the Executive Order.3
BACKGROUND
On January 27, 2017, President Trump issued the Prior Order which, inter alia,
suspended entry and the issuance of visas to nationals from seven countries: Iran, Iraq, Libya,
Somalia, Sudan, Syria and Yemen. The avowed “[p]urpose” of the Prior Order was “to protect
Americans” by “ensur[ing] that those admitted to this country do not bear hostile attitudes
toward it and its founding principles.” Prior Order, § 1. Purportedly to that end, the Prior Order
instituted a 90-day ban on the “immigrant and nonimmigrant entry into the United States of
aliens from” the seven countries while the Departments of State and Homeland Security as well
as U.S. intelligence officials undertake a “review” of the United States’ current visa-application
and issuance process. Id. § 3(a)-(c).
The Prior Order’s enforcement was enjoined by several federal district courts almost as
soon as it was issued, as a result of legal challenges brought by various plaintiffs across the
country. See, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017); Aziz v. Trump, __ F.
3 For the safety of these individuals and their families, the italicized names used in this brief are pseudonyms. Given the heightened tension surrounding these issues, as well as the reported threats made against individuals associated with these proceedings, e.g., federal judges connected to litigation challenging the current Order and the Prior Order, these individuals are understandably fearful about revealing their identities. See Lynn Kawano, Hawaii Judge Who Blocked Travel Ban Gets Protection Detail, Hawaii News Now (Mar. 22, 2017), available at http://www.hawaiinewsnow.com/story/34977777/hawaii-judge-who-blocked-travel-ban-getsprotection-detail-following-threats (visited Mar. 23, 2017); Evan Perez, et al., Threats Against Judges in Immigration Ban Cases Leads to Increased Security, CNN (Feb. 9, 2017), available at http://www.cnn.com/2017/02/09/politics/judges-threatened-immigration-order (visited Mar. 23, 2017). These individuals also fear retaliation by Iran’s government and its supporters should they be publicly identified as beneficiaries of American charities and organizations such as amici.
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Supp. 3d ___, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). In response to these injunctions, defendants issued on March 6, 2017 the current, superseding Executive Order now at issue. The current Order’s stated purpose is substantially the same as the Prior Order’s: “to protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” Executive Order, § 1(a). And the current Order seeks to achieve that end via means nearly identical to those employed by the Prior Order, i.e., by instituting a 90-day, categorical ban on the entry of foreign nationals from certain designated countries, and suspending the United States’ participation in refugee resettlement, purportedly while the federal government undertakes a review of the “screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program.” Id. §§ 1(a), 2, 6.4
The current Order retreats from the Prior Order in a few respects. For example, the current Order, unlike the Prior Order, expressly does not apply to lawful permanent residents, or to foreign nationals who were authorized to enter the United States when the Prior Order was issued, or to foreign nationals who have valid visas on the effective date of the current Order. Id. § 3(a)-(b). The exemptions for those who previously received visas, however, are cold comfort to those who, like many of the individuals whose personal stories are reported below, will need to leave the United States only to return later, e.g., for subsequent surgical treatments, and who thus would be denied entry under the Executive Order when they later seek to reapply for or renew their visas (absent a waiver from the Secretaries of State and Homeland Security, id. § 3(c)). And as mentioned, see note 2, supra, the current Order singles out for exclusion
4 The current Executive Order was due to take effect on March 16, 2017, but its enforcement also has been enjoined by federal district courts in Hawaii and Maryland. See Executive Order, § 14; Int’l Refugee Assistance Project v. Trump, __ F. Supp. 3d ___, No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017); Hawaii v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).
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nationals from the same seven countries as the prior Order, the only exception being that Iraqi nationals are now subject to special review by the Department of Defense, rather than a categorical entry bar. Id. § 4. The categorical bar for nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen remains unchanged. Id. § 2(c). As the following personal stories that have been relayed to amici demonstrate, however, nationals from these countries, including children seeking medical attention and students from Iran, already must undergo an extensive and lengthy vetting process to obtain visas to enter the United States. The Executive Order nevertheless bars those who have cleared that existing screening process from entry, and has thereby caused tremendous stress and terrible disruption to these individuals and their families. I. Azar and Ahmad
Azar and her husband live in Iran with their teenage daughter and eight-year-old son, Ahmad.5 Ahmad suffers from a univentricular heart. Azar and Ahmad first came to the United States on B-2 visitor visas when Ahmad was three-years-old because Ahmad required treatment not available in Iran—a surgery called the Fontan procedure.
Obtaining those visitor visas was a difficult process. First, only Azar and Ahmad could receive visas, separating the family while Azar and Ahmad traveled to the United States. In FCI’s experience, the United States will grant only one parent (typically the mother) a visa to enter the United States out of fear that, if both parents are granted visas, they will not return to Iran. Therefore, as with all of FCI’s beneficiaries, FCI recommended that only the mother and child seek visitor visas.
Second, Azar and Ahmad were both required to travel to the American embassy in Dubai for an interview because the United States does not maintain an embassy or consulate in Iran.
5 As described supra, note 3, the identities of Iranian nationals have been anonymized using pseudonyms.
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Besides the documents described infra at 15-17, Azar also brought, inter alia, documentation regarding FCI’s financial support of Azar and Ahmad, which included a place to stay while in the United States, and medical documentation detailing Ahmad’s medical condition and the lack of treatment options in Iran. Azar was required to return to the embassy four times with additional documentation before she and Ahmad were finally issued visas. Azar stayed in Dubai for over a month in an effort to obtain a visa for travel to the United States to seek life-saving medical treatment for her sick child.
Ahmad’s first surgery in the United States was a success, but it was only the first of a planned series of procedures, as is typical with the Fontan procedure. Ahmad required significant post-operative recovery time. Azar and Ahmad stayed in the United States for four months and then returned to Iran. Four years later, when Ahmad was seven-years-old, he was scheduled for his next surgery. Again Azar was required to travel with Ahmad to Dubai for an interview. This time, a woman working at the embassy told Azar that, because Azar was not a resident of Dubai, she could not obtain a visa from the embassy in Dubai. After much uncertainty and anguish, this misunderstanding was resolved and Azar was able to obtain visas for herself and Ahmad. Azar and Ahmad traveled again to the United States, where they stayed for three months after Ahmad’s surgery.
Ahmad is now eight-years-old. Azar and Ahmad traveled to the United States a third time in November 2016 for another surgery. Ahmad is currently recovering from that surgery and doctors expect that he will require a fourth soon. Azar and Ahmad’s visas expire in May 2017. Azar longs to be reunited with her husband and daughter in Iran but now fears that if she and Ahmad leave the country they will not be permitted to return to the United States for the required next surgery.
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II. Banu and Basir Banu, her husband, daughter and son Basir live in Iran. Basir was born in late 1998 with
a congenital heart defect that resulted in a lack of oxygen in his blood. Banu and her husband consulted the best Iranian doctors, but none in Iran could help Basir or could keep him alive. Their only hope for Basir’s survival was in the United States. Banu contacted FCI, which assisted Banu with the visa-application process.
Banu, her husband and Basir traveled to the U.S. embassy in Turkey for Banu and Basir’s interviews when Basir was still an infant. Basir was extremely sick and required constant oxygen and medication during the interview process.
Banu and Basir were issued visas and traveled to the United States for Basir’s surgery. At 44-days-old, Basir was so sick that he was greeted by an ambulance at the airport gate and immediately transported to a hospital. Basir’s surgery was successful but his recovery was lengthy. Banu’s visa was valid for only three months, and therefore she needed to return to Iran. FCI was able to assist Banu’s husband with obtaining a visa so that he could be with Basir during the remainder of Basir’s recovery.
Basir returned to the United States in 2012 for an anticipated additional surgery and recovered well. Today, Basir is an eighteen-year-old student at the best university in Iran. He enjoys playing soccer and is a chess champion. After his 2012 surgery, however, doctors anticipated that he would need additional surgery in another five to ten years—between 2017 and 2022—and Basir is now within that window. He is under the care of doctors in Iran, who consult with U.S. physicians as needed. Although Basir’s condition is currently stable, it is difficult to predict when in the next five years he will need his additional surgery. FCI, Banu and Basir are concerned that the Executive Order could prevent Basir from receiving further life-
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saving surgery should an urgent need arise during the 90-day travel ban. III. Dr. David Overman
Dr. David Overman is Chief of the Division of Cardiovascular Surgery at Children’s Hospitals and Clinics of Minnesota and a staff surgeon. His clinical interests include the surgical management of congenital heart disease. He has specific expertise with hypoplastic left heart syndrome and complex neonatal repairs, as well as aortic root disease and the Ross Procedure.
Dr. Overman is Medical Director of Children’s HeartLink, a non-governmental organization that builds partnerships between pediatric cardiac programs in the developing world and in North America and Europe. Dr. Overman began working with FCI in early 1999 when he operated on Basir. Since then, Dr. Overman has operated on approximately 15 Iranian children brought to the United States by FCI. Some of these children, like Basir, require close monitoring and multiple surgeries.
Dr. Overman’s role with FCI involves evaluating the medical records of potential beneficiaries to determine whether they may be good candidates for treatment in the United States, performing surgery on these beneficiaries if they do come to the United States, and working remotely with doctors in Iran to monitor their conditions. Dr. Overman is concerned that if the Executive Order remains in place, it will interfere with his ability to offer necessary life-saving medical treatment to his patients. IV. Dalir
Dalir is a Ph.D. chemistry student in the Midwestern United States. As an Iranian, he counts himself lucky to have obtained a student visa to enter the United States. As with all student visa applicants, Dalir was first required to obtain acceptance at an American university. He was accepted in 2015 and immediately applied for an F-1 (student) visa for himself and an F-
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2 (dependent) visa for his wife. After submitting the necessary applications, photographs and fees, he made an appointment for them to travel to Dubai to be interviewed at the U.S. embassy. At his interview, he presented, inter alia, his research plan, statement of purpose, certificate of marriage and bank statements. He and his wife were fingerprinted. Two months later, they received their visas. Dalir was pleasantly surprised that they received multiple-entry visas; in Dalir’s experience, most Iranian students receive only single-entry visas, which are valid for five years. Because their visas are multiple-entry visas, however, they are valid for only two years (until the summer of 2017).
Dalir and his wife arrived in the United States for the fall semester 2015. By the end of 2016, they had not been to Iran for over one year and missed their families. They decided to return to Iran for the winter holidays. Dalir could stay only two weeks due to his academic demands. His wife, not being a student, could stay longer and planned to return to the United States in February. After hearing rumors of a forthcoming travel ban, however, Dalir immediately called his wife and rescheduled her return. His wife was in the air, attempting to reunite with her husband, when President Trump signed the Executive Order.
His wife’s itinerary took her from Iran to Chicago via Frankfurt. She landed in Frankfurt shortly after the Executive Order was signed. Two hours into her layover, the airline informed her that she would not be allowed to board her flight to Chicago due to the Executive Order and put her on a plane back to Iran.
The next week was extremely difficult for Dalir and his wife. Both feared that they would not be able to see one another again unless Dalir quit his Ph.D. program. Dalir’s worry that he would not be reunited with his wife prevented him from concentrating on his studies. For six days, he desperately followed the news. He was aware of the TRO issued by a federal district
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court in Boston, but also knew that airlines were not allowing Iranian visa holders to board planes bound for the United States. When Dalir learned that Lufthansa was allowing Iranian visa holders to board planes bound for Boston, he immediately called his wife. Dalir had told her to pack her bags and be prepared to leave. It was 2 am in Iran, but he convinced his wife to get to the airport for a 7 am flight. Dalir booked her ticket and she immediately left for the Tehran airport. Simultaneously, Dalir began a seventeen-hour car ride to Boston.
Dalir arrived in Boston just as his wife’s flight was landing. As he waited at the international arrivals area, Dalir grew concerned when he did not see his wife for several hours, despite seeing other passengers exit customs. She emerged three hours after landing, following secondary screening.
Dalir and his wife got back into the car and drove another seventeen hours home. The travel ban had significant impacts on Dalir’s studies—e.g., he delayed one of his seminars that was scheduled to take place during the six days when he was trying to bring his wife back into the United States—which he continues to work with his university to resolve. Although Dalir and his wife may lawfully remain in the United States until Dalir completes his Ph.D. program, they fear that they will be unable to obtain additional visas when their current visas expire, leaving them potentially unable to visit their families for three years.
SUMMARY OF ARGUMENT Even as revised, the Executive Order cannot satisfy the comparatively less demanding rational-basis standard of review, rendering it unconstitutional. The United States’ preexisting visa-application process and other screening procedures are already aimed specifically at the problems that the Executive Order purportedly seeks to solve—preventing terrorism inside the United States. As described by the compelling stories above from the amici’s members and
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other constituents, these visa-application procedures are stringent, even for a newborn baby seeking a visa to the United States for life-or-death surgery. Nor can the unconstitutional stain be cleansed by the Order’s limit of countries to which the travel ban applies. Indeed, the irrationality of the travel ban is further confirmed by the list of countries singled out by the Executive Order, which is both under-inclusive and over-inclusive in relation to the national origins of the perpetrators of the recent terrorist attacks that allegedly provide the justification for the travel ban. The lack of any rational impetus for the Order’s travel ban alone not only renders it unconstitutional under the Equal Protection and Due Process Clauses, but also lends support to Plaintiffs’ Establishment Clause challenge. With no rational basis for the categorical ban on travel from these countries where upwards of 90%, and in some cases 99%, of the population is Muslim, the only reasonable conclusion to draw is that the ban in fact is the result of animus against Muslims, regardless of whether the Order is facially neutral with respect to religion.
There are statutory flaws with the travel ban as well. Although the Executive Order relies on 8 U.S.C. § 1182(f) for its purported authority to exclude all nationals of six countries, a holistic reading of that statute refutes that claim. That provision states that the President may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants,” but does not define “classes of aliens.” Another part of the same section defines multiple “classes of aliens”—but none by reference to immutable characteristics such as nationality. Reading the statute as a whole, 8 U.S.C. § 1182(f) does not permit the President to bar entire nationalities without some individualized consideration of applicants for admission. Because the Executive Order exceeds the proper scope of the President’s statutory authority, it cannot stand.
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ARGUMENT I. The Executive Order’s Travel Ban Is Irrational.
A. Preexisting Screening Procedures for Persons from the Seven Restricted Countries to Enter the United States Are Robust and Thorough.
Even acknowledging that the political branches of the federal government have comparatively “broad power over naturalization and immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), any distinction that the federal government may wish to draw between noncitizens based on national origin still must satisfy at least “rational basis” review. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979). Because the Executive Order’s travel ban operates selectively with respect to only certain foreign nationals, depending on their national origin, it must be supported by at least some “assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler v. Doe, 457 U.S. 202, 216 (1982). While comparatively less demanding than other standards of review in federal constitutional law, the rational-basis standard is far from a meaningless rubber stamp on the actions of the political branches. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 636-37 (1974) (striking down provision of the Social Security Act as not rationally connected to provision’s asserted purpose); U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534-36 (1973) (striking down as irrational statute withholding food stamps to households with unrelated members).
The travel bans fails to satisfy even this most deferential standard. As alluded to by the personal experiences recounted above, the United States’ preexisting visa-application process and other screening procedures that have been in place for quite some time are all “aimed specifically at the problems” that the Executive Order’s travel ban purportedly seeks to solve. Moreno, 413 U.S. at 536. Indeed, the Executive Order acknowledges that these procedures were already tightened significantly in response to the September 11 attacks. See Executive Order,
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§ 1. “The existence of these provisions necessarily casts considerable doubt upon the proposition that the [travel ban] could rationally have been intended to prevent those very same [harms].” Moreno, 413 U.S. at 536-37. Moreover, a law that, like the Order, lacks any rational connection to its asserted aims is more likely to have in fact been motivated by a constitutionally improper purpose, such as “a bare … desire to harm a politically unpopular group” (in this case Muslims). Id. at 534; accord Romer v. Evans, 517 U.S. 620, 635 (1996) (laws that impose “disadvantage[s] … born of animosity toward the class of persons affected” lack a constitutionally legitimate purpose).
Any supposed rational-basis for the categorical ban of travel for individuals from the targeted countries is dispelled by the fact that the United States government currently employs stringent standards regarding the admission of most nonimmigrants into the United States. When foreign nationals wish to enter the United States, they first must obtain visas unless they are from one of only 38 visa-waiver countries where a visa is not required for stays of 90 days or less for tourism or business reasons (and even then, only if they are not also a national of Iraq, Iran, Syria, or Sudan). U.S. Dep’t of State, Visa Waiver Program, available at http://travel.state.gov/content/visas/en/visit/visa-waiver-program.html (visited Feb. 15, 2017). The process for obtaining a nonimmigrant visa to the United States is lengthy, expensive and difficult—particularly for Iranian Americans. Over 45 percent of Iranian B-visa seekers were denied visas in Fiscal Year 2016.6 See U.S. Dep’t of State, Adjusted Refusal Rate—B-Visas Only By Nationality Fiscal Year 2016, available at http://travel.state.gov/content/dam/visas/Statistics/ Non-Immigrant-Statistics/RefusalRates/FY16.pdf (visited Feb. 15, 2017).
6 In FCI’s experience, the Department of State denies many Iranian visa seekers’ applications for incomplete applications or supporting documentation. See 8 U.S.C. § 1201(g).
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Applicants for nonimmigrant visas must complete an application, submit photographs, pay an application fee and schedule an interview at a U.S. embassy or consulate. U.S. Dep’t of State, Student Visa, available at http://travel.state.gov/content/visas/en/study-exchange/student. html (visited Feb. 15, 2017) (applicable to F-1 and F-2 visa applicants); U.S. Dep’t of State, Visitor Visa, available at http://travel.state.gov/content/visas/en/visit/visitor.html (visited Feb. 15, 2017) (applicable to B-2 visa applicants, including those seeking medical treatment). The application form itself is lengthy, asking for information such as a list of all of the countries the applicant has entered in the last ten years and all professional, social and charitable organizations to which the applicant has belonged or contributed, or with which the applicant has worked. Applicants seeking visas for medical reasons additionally must submit an invitation letter from the hospital and doctors providing treatment, medical documentation describing the illness (translated) and a letter from a doctor stating the reasons why the planned treatment cannot or should not be performed in Iran or a neighboring country such as Turkey. Many FCI beneficiaries also require affidavits of support from sponsors if the beneficiaries cannot afford to travel with their own funds, lest the consular official determine their personal financial situation to be insufficient. See 22 C.F.R. § 41.31(a)(3). Because the United States does not maintain an embassy or consulate in Iran, Iranian nationals seeking visas to enter the United States must travel to a third country for their interviews. Travel to that third country (for example, the United Arab Emirates), also requires a visa. Applicants must bring significant documentation with them to their visa interviews, including six months of bank statements (translated and officially stamped). Applicants are also fingerprinted during their interviews.
Put simply, the U.S. government has already addressed its purported concerns set forth in the Executive Order by adopting and maintaining comprehensive and stringent visa requirements
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from individuals in the targeted countries. An absolute ban for 90 days has no rational basis. Indeed, in this litigation, the government has never suggested what further screening processes might be put into place at the end of the 90-day review period that would improve upon those already in place for nationals of the six countries who are categorically barred from entry. As discussed in the following section, the evidence is that the existing procedures are working insofar as adult nationals from these countries have not traveled to the United States and participated in terrorist attacks in the past two decades. In the absence of identified problems with the existing screening process for persons from these countries and with no indication that a “solution” to the non-existent problems is forthcoming, there is at a minimum a reasonable likelihood that plaintiffs will succeed in establishing that the Executive Order lacks a rational basis.
B. The List of Countries Singled Out by the Executive Order’s Travel Ban Lacks a Rational Connection to the Asserted Reasons for the Ban.
The rationality of the Executive Order’s travel ban also is in doubt because of the manner in which it operates. The ban is both selective—targeting only foreign nationals from the seven referenced countries—but at the same time broad, prohibiting any alien from those countries from entering the United States, even minors, and regardless of the grounds on which that entry is sought: for work, for study, for resettlement as a refugee fleeing an active war zone, for medical treatment that is unavailable in their home countries, or for short-term visits with family members residing in the United States. See Executive Order, § 2(c). Viewing the Executive Order’s selective travel ban in light of the Order’s stated reasons for it, the ban’s arbitrary harshness presents a second, independent reason why it lacks a rational basis, and all the more reason for concluding that its restrictions are meant to spite an unpopular class of persons, rather than to serve any legitimate security-related aim.
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The Executive Order’s stated justification for barring the entry of all foreign nationals
from Iran, Libya, Somalia, Sudan, Syria and Yemen is the concern that any national from those
countries might commit terrorist acts in the United States, perhaps at the behest of terrorist
organizations, and the Executive Order points to “hundreds of [unspecified] persons born abroad
[that] have been convicted of terrorism-related crimes in the United States” since 2001 as
support. Executive Order, § 1(h). The problem, however, is that those “persons born abroad”
and the history of domestic terrorist incidents in the United States since 2001 lend no support to
the Executive Order’s selective and discriminatory ban. Indeed, the list of countries whose
nationals the Executive Order has singled out bears little or no correlation to the places from
which those who have attempted or committed terrorist attacks within the United States have hailed over the last 16 years.7
To begin, the Order is over-inclusive. Romer, 517 U.S. at 632 (laws fail rational basis
review where their “sheer breadth is so discontinuous with the reasons offered for it that [they]
seem[] inexplicable by anything but animus toward the class [they] affect[]”). There have been
only a handful of persons who originally hail from some of the countries the Executive Order
singles out and who have carried out or attempted to carry out terrorist plots since 9/11 that did
not result in fatalities. These include one car-ramming attack carried out in 2006 by an Iranian-
7 Defendants have argued that Congress and the prior administration identified these seven countries as ones presenting “terrorism-related concerns,” and that the Executive Order merely adopts that prior determination and enhances the security measures with regard to those countries. But neither Congress nor the prior administration banned nationals from those countries from entering the United States for any period of time, as the Executive Order does. Indeed, a Department of Homeland Security assessment found that “‘country of citizenship is unlikely to be a reliable indicator of potential terrorist activity’ and that ‘few of the impacted countries have terrorist groups that threaten the West.’” Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235, at *15 (D. Md. Mar. 16, 2017) (discussing report available at https://assets.documentcloud.org/documents/3474730/DHS-intelligencedocument-on-President-Donald.pdf); accord Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *6 (D. Haw. Mar. 15, 2017) (same).
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American lawful permanent resident (“LPR”) in Chapel Hill, North Carolina in 2006;8 an unsuccessful plot by a Somali-American who planned to bomb a Christmas tree lighting in Portland, Oregon in 2010;9 an attack involving multiple stabbings by a Somali-American at a shopping mall in St. Cloud, Minnesota in 2016;10 and another car-ramming attack carried out by a Somali-American LPR at Ohio State University in 2016.11
To put these four individuals in broader perspective, there are approximately 500,000 persons of Iranian ancestry and 130,000 persons of Somali ancestry living in the United States, according to 2011 American Community Survey data.12 These incidents also offer no reason whatsoever for the inclusion of the other five countries in the Executive Order’s travel ban. Moreover, even with respect to these four incidents, there is no credible basis for believing that the Executive Order’s travel ban, sweeping as it is, would have done anything to prevent them. Two of the four incidents—the 2006 car-ramming attack and the 2010 bomb plot—involved naturalized U.S. citizens who immigrated to the United States as young children and lived here
8 Jessica Rocha, et al., Suspect Says He Meant to Kill, Charlotte News & Observer (Mar. 8, 2006), available at http://web.archive.org/web/20081013151023/http://www.newsobserver.com/ news/v-print/story/415421.html (visited Feb. 15, 2017). 9 US ‘Foils Oregon Bomb Plot’, ALJAZEERA (Nov. 27, 2010), available at http://www. aljazeera.com/news/americas/2010/11/2010112764714953451.html (visited Feb. 15, 2017). 10 FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, CHI. TRIB. (Sept. 18, 2016), available at http://www.chicagotribune.com/news/nationworld/ctminnesota-mall-stabbing-20160918-story.html (visited Feb. 15, 2016). 11 Islamic State Group Claims Ohio State University Rampage, BBC (Nov. 30, 2016), available at http://www.bbc.com/news/world-us-canada-38151669 (visited Feb. 15, 2017). 12 See U.S. Census Bureau, 2011 American Community Survey 1-Year Estimates: Total Ancestry Reported (Dec. 22, 2012), available at http://ia601608.us.archive.org/26/items/2011American CommunitySurveyAncestry/2011Acs.pdf (visited Feb. 15, 2017).
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for many years before engaging in terrorism.13 The individuals at the center of the other two
incidents reportedly also came to the United States as children—one at age seven and the other at age 16—and did not carry out their attacks for years after arriving.14 The idea that it is rational
to ban toddlers from entering the country out of a speculative fear that they might someday grow
up to be terrorists is implausible, and offends our most basic principles. Cf. Miller v. Alabama,
132 S. Ct. 2455, 2464-65 (2012) (recognizing that fundamental differences between juveniles
and adults that makes it difficult to predict with confidence how children will behave as they
mature). Nor could any “enhanced screening” plausibly determine which young children will
grow up to be terrorists.
The Order is also arguably under-inclusive—another sign of irrationality that often
bespeaks constitutionally impermissible animus toward those few the law actually targets. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (rejecting need to regulate
population density of group homes for mentally disabled residents as a justification for a zoning
ordinance requiring special permits for such facilities because other types of facilities presenting
identical concerns were not subject to similar requirements). There have been twelve persons
who have succeeded in carrying out fatal terrorist attacks inside the United States since the
September 11, 2001 attacks; not a single one of these attacks was committed by anyone from the
13 See Rocha, et al., supra (reporting that 22-year-old perpetrator was born in Iran but “grew up in the Charlotte area, attending public school for 13 years until he graduated from South Mecklenburg High School in 2001,” five years before attack); Colin Miner, et al., F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack, N.Y. Times (Nov. 27, 2010), available at http://www. nytimes.com/2010/11/28/us/28portland.html (visited Feb. 15, 2017) (reporting that 19-year-old plotter attended middle school and high school in Oregon). 14 See FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of Terrorism, supra (reporting that 22-year-old perpetrator “was born in Africa and had lived in the U.S. for 15 years”); Islamic State Group Claims Ohio State University Rampage, supra (reporting that 18year-old perpetrator arrived in the United States two years before the incident, after living for seven years in a refugee camp in Pakistan).
18

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seven countries identified in the Executive Order.15 Three of them were of Pakistani heritage.16
Three more were African Americans who were born here.17 Another was Egyptian.18 Two were
of Chechen ancestry, born in former Soviet republics, and came to the United States from Russia
as children.19 And one each came from families that originally hailed from Kuwait, Afghanistan
and the Palestinian Territories.20 Indeed, even the September 11 attacks themselves had no
relation to any of the countries the ban is focused on, as the 19 foreign nationals who perpetrated
those attacks came to the United States from Saudi Arabia, Egypt, Lebanon and the United Arab
Emirates.21
15 See Peter Bergen, et al., In Depth: Terrorism in America After 9/11, Part II: Who are the Terrorists? available at https://www.newamerica.org/in-depth/terrorism-in-america/who-areterrorists/ (visited Feb. 15, 2017). 16 See San Bernardino Shooting: Who Were the Attackers?, BBC (Dec. 11, 2015), available at http://www.bbc.com/news/world-us-canada-35004024 (visited Feb. 15, 2017); Jennifer Sullivan, Seattle Jewish Center Shooter Gets Life Sentence, L.A. TIMES (Jan. 15, 2010), available at http://articles.latimes.com/print/2010/jan/15/nation/la-na-seattle-jewish-center15-2010jan-15 (visited Feb. 15, 2017). 17 See Sergio Peçanha & K.K. Rebecca Lai, The Origins of Jihadist-Inspired Attackers in the U.S., N.Y. TIMES (Dec. 8, 2015), available at http://www.nytimes.com/interactive/2015/11/25/ us/us-muslim-extremists-terrorist-attacks.html?_r=0 (visited Feb. 15, 2017) (Ali Muhammad Brown, Alton Nolen and Abulhakim Mujahid Muhammad). 18 See Los Angeles Airport Shooting Kills 3, CNN (July 5, 2002), available at http://edition. cnn.com/2002/US/07/04/la.airport.shooting/ (visited Feb. 15, 2017). 19 See Nina Burleigh, The Brothers Who Became the Boston Marathon Bombers, NEWSWEEK (Apr. 6, 2015), available at http://www.newsweek.com/brothers-who-became-boston-marathonbombers-319822 (visited Feb. 15, 2017). 20 See Orlando Gay Nightclub Shooting: Who Was Omar Mateen?, BBC (June 14, 2016), available at http://www.bbc.com/news/world-us-canada-36513468 (visited Feb. 15, 2017); Catherine E. Shoichet & Gary Tuchman, Chattanooga Shooting: 4 Marines Killed, A Dead Suspect and Questions of Motive, CNN (July 17, 2015), available at http://edition.cnn.com/2015/07/16/us/tennessee-naval-reserve-shooting (visited Feb. 15, 2017); James Dao, Suspect Was ‘Mortified’ About Deployment, N.Y. TIMES (Nov. 5, 2009), available at http://www.nytimes.com/2009/11/06/us/06suspect.html (visited Feb. 15, 2017). 21 September 11th Hijackers Fast Facts, CNN (Sept. 5, 2016), available at http:// cnn.com/2013/07/27/us/september-11th-hijackers-fast-facts (visited Feb. 15, 2017).
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In sum, even under rational-basis review, the record of terrorist attacks committed or
attempted in the United States since the September 11 attacks offers no basis for singling out the seven countries identified in the Executive Order for travel restrictions.22 Most of the countries
from which foreign terrorist attacks against the United States have originated are not even
included on the list; most of the countries that are on the list are ones from which no terrorist
threat has come at all in the period following the September 11 attacks; and even acknowledging
that a handful of recent attackers or would-be attackers were from these countries, because they
came here as children it seems inconceivable that any purported “enhanced screening” would
have prevented those incidents or more like them. Based on both its under-inclusiveness and
over-inclusiveness, the Executive Order’s travel ban “appears to rest on an irrational prejudice
against” nationals from the seven countries singled out for adverse treatment, which is not a
legitimate government interest that supplies the requisite rational basis. Cleburne, 473 U.S. at
450.
III. The President’s Statutory Authority Under Section 212(f) of the INA Does Not Justify the Executive Order. Even ignoring the substantial constitutional difficulties with the Executive Order’s travel
ban, Defendants’ principal statutory basis for it—Section 212(f) of the Immigration and
22 The Order also cites a case from January 2013 that involved “two Iraqi nationals admitted to the United States as refugees in 2009 [who] were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.” Executive Order, § 1(h). Of course, Iraqi nationals are not subject to categorical restrictions under the current Order, which amplifies rather than diminishes the Order’s irrationality. In any event, what the Order fails to mention is that is that the incident it relies on did not involve any planned attack on U.S. soil, but rather the provision of material support for such attacks in Iraq, and so has little if any connection to the Order’s asserted purpose of “protect[ing] the Nation from terrorist activities by foreign nationals admitted to the United States.” See Alex Nowrasteh, Trump Justifies Executive Order by Citing Terrorists Who Were Not Planning a Domestic Attack, Cato Institute (Mar. 6, 2017), available at https://www.cato.org/blog/trump-justified-executive-order-citing-terrorists-who-were-notplanning-domestic-attack (visited Mar. 23, 2017).
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Nationality Act (“INA”), 8 U.S.C. § 1182(f)—also fails to justify it. See Executive Order, § 2(c). To be sure, Section 212(f) is framed in broad language, authorizing the President to “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” when he 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.” 8 U.S.C. § 1182(f). But for the reasons to follow, the phrase “class of aliens” in Section 212(f) should not be interpreted to include “nationality” as a type of class.
The phrase “class of aliens” in Section 212(f) is not defined, and thus does not explicitly provide the President authority to define a “class” in terms of nationality or any similar immutable characteristic. Nor should it be interpreted to include such authority. Instead, the phrase “class of aliens” in Section 212(f) should be read in light of the same phrase as used elsewhere in the statute, specifically Section 212(a). See Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (“[I]dentical words used in different parts of the same act are intended to have the same meaning.”). Section 212(a) defines several specific “classes of aliens ineligible for visas or admission,” who are categorically “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). None of the “classes of aliens” set forth in Section 212(a) are defined in terms of immutable characteristics, such as nationality; rather, the categories are typically defined by reference to the alien’s individual conduct, and in some cases by mutable characteristics (e.g., infection with a communicable disease). See, e.g., id. § 1182(a)(1) (health-related grounds), (a)(2) (certain criminal activities or convictions), (a)(1) (communicable diseases), (a)(3) (terrorism, membership in totalitarian parties and related activities), (a)(6) & (9) (prior violations of U.S. immigration laws), (a)(7) (failure to present
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required documentation). The absence of any “classes” of aliens defined by immutable characteristics in Section 212(a) provides reason to believe that “any class of aliens” in 212(f) similarly excludes immutable characteristics such as nationality.
Put another way, the meaning of the phrase “any class of aliens” as used in Section 212(f) (emphasis added) should be determined in light of the “company it keeps” under “familiar” statutory-interpretation principles. McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). And here, the “company” that Section 212(f) keeps—the enumeration of specific “classes of aliens” identified in Section 212(a)—suggests that it was only meant to provide the President with the authority to temporarily exclude additional “classes of aliens” defined by their individual conduct or mutable characteristics, not their immutable characteristics such as nationality. 8 U.S.C. § 1182(f). Nowhere in Section 212 is there any contrary evidence that would support reading “class” to include an entire nationality.
Consistent with that limited reading of Section 212(f), the Executive Order’s categorical prohibition on all foreign nationals (other than certain government officials) from certain countries holding valid U.S. visas entering the United States is unprecedented in the history of the clause. Notwithstanding numerous wars, hot and cold, during Section 212(f)’s more than 60year history, during which Section 212(f) was invoked dozens of times, none of those invocations were to bar all aliens of a given nationality holding visas from entering the United
22

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States whether as immigrants or non-immigrants.23 Instead, suspensions pursuant to Section 212(f) usually were on the basis of only demonstrated conduct by specific aliens (e.g., committing human rights abuses, supporting terrorism, or participating in anti-democratic coups). See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief (Cong. Res. Serv. Jan. 23, 2017), at 1-2 & 6-10 (Table 1). That “contemporaneous and consistent” executive practice suggests that “any class of aliens” means something less than a whole nationality, and that understanding “is entitled to great weight” in construing the statute. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947); accord Norman Singer & Shambie Singer, 2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring) (“[A] systemic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”).
In summary, there is no clear indication that Congress meant to give the President carte blanche to prevent entire nationalities of aliens from entering the country. Section 212(f)’s grant of authority should be construed so as not to create unnecessary tension with the rest of Section 212, and thus construed, the Executive Order’s travel ban should be invalidated as an action that lies beyond the President’s authority. Cf. Rust v. Sullivan, 500 U.S. 173, 191 (1991).
23 An August 26, 1986 proclamation limited the entry of Cuban immigrants, but included broad categorical exceptions for Cuban nationals applying for admission as immediate relatives, “special immigrants”—which includes numerous categories of immigrants including lawful permanent residents returning from abroad—and “preference immigrants,” including those with family-sponsored and employment-based immigrant visas. See Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986); 8 U.S.C. §§ 101, 1151, 1153.
23

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CONCLUSION This Court should grant the plaintiffs’ motion for a preliminary injunction.

Dated: March 28, 2017

Respectfully submitted,
/s/ David R. Fox Nicholas K. Mitrokostas (pro hac vice pending) William B. Brady (pro hac vice pending) Joshua M. Daniels (pro hac vice pending) David R. Fox (DC Bar No. 1015031) Alicia Rubio (pro hac vice pending) Eileen L. Morrison (pro hac vice pending) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231
Counsel for Amici Curiae The Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders

24

Case 1:17-cv-00255-TSC Document 59 Filed 03/31/17 Page 29 of 29 CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2017, I electronically filed the foregoing Brief for the Foundation for the Children of Iran, Children of Persia and Iranian Alliances Across Borders as Amici Curiae in Support of Plaintiffs’ Motion for a Preliminary Injunction with the Clerk of the Court of the U.S. District Court for the District of Columbia by using the CM/ECF system. Counsel of record for all parties will be served via the CM/ECF system.
/s/ David R. Fox David R. Fox
25

 
 Case 1:17-cv-00255-TSC Document 60 Filed 03/31/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Pars Equality Center, et al.,

)

)

Plaintiffs

)

)

No. 1:17-cv-255 (TSC)

v.

)

)

Electronically Filed

Donald J. Trump, et al.,

)

)

Hon. Tanya S. Chutkan

Defendants,

)

)

____________________________________)

AMICI CURIAE BRIEF OF NATIONAL AND REGIONAL CIVIL RIGHTS ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00255-TSC Document 60 Filed 03/31/17 Page 2 of 33
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES
DANGEROUS CONDITIONS FOR MEMBERS OF MINORITY GROUPS. .................2 A. Stereotyping Minority Groups Creates A Climate For Discrimination. ..................2 B. The Executive Order Is Based On Stereotypes About Muslims And Arabs
As “Anti-American” And “Terrorists.” ...................................................................5 C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged
Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. ...........................................................8 II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST ..................................................................11 A. Animus Towards A Particular Group Is Not A Legitimate Government Interest....................................................................................................................11 B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest. ............................17 C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims ...................20 III. CONCLUSION..................................................................................................................25
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TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) ......................................................................................................3
Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2011) ...................................................................................................12
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)...........................................................17, 18, 19, 24
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...............................................................................................12
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)...................................................................................................................4
Buck v. Davis, 580 U.S. ____, 137 S. Ct. 759 (2017)....................................................................................4, 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................................... 12, passim
Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985) .............................................................................................13
Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) .....................................................................................................4
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...................................................................................................................2
Hassan v. City of New York, 804 F.3d (2d Cir. 2016)..............................................................................................................3
Hawai‘i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).....................................................................19, 20
Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ...........................................................................................................19
Johnson v. California, 543 U.S. 499 (2005).................................................................................................................11
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Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...................................................................................................................2
Loving v. Virginia, 388 U.S. 1 (1967).......................................................................................................................4
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................9
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).................................................................................................................20
Miller-El v. Dretke, 545 U.S. 231 (2005)...................................................................................................................3
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)...................................................................................................................3
Plyler v. Doe, 457 U.S. 202 (1982).....................................................................................................13, 14, 17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................................................................2
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) .....................................................................................................3
Romer v. Evans, 517 U.S. 620 (1996)...............................................................................................13, 15, 16, 17
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)...................................................................................................................8
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................2
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) ........................................................................................................3
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...............................................................................................13, 16, 17, 25
United States v. Robel, 389 U.S. 258 (1967).................................................................................................................21
United States v. Stephens, 421 F.3d 503 (7th Cir. 2005) .....................................................................................................3
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United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................................12, 16, 17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...........................................................................................11, 20
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................................................12
FEDERAL REGULATIONS
82 Fed. Reg. 13,209 (Mar. 9, 2017).................................................................................................7
82 Fed. Reg. 8977 (Jan. 27, 2017) ...................................................................................................6
OTHER AUTHORITIES
Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP .....................................................................10
Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons ...................................................................................................21, 22
C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). .................................................................................................................7
Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kelly-travel-ban-muslimcountries ...................................................................................................................................22
David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climate-racial-intolerance%E2%80%99-fueled-anti-muslimpolitical-rhetoric .......................................................................................................................10
Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travelban-will-have-same-basic-policy-outcome.html .....................................................................19
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Helena Horton, Muslim ban statement ‘removed’ from Donald Trump’s website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statementremoved-from-donald-trumps-website/. ....................................................................................5
Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/ ...............................................................................................................................5
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) ....................13
Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html ...................................................................................25
Louis Nelson, Trump on immigration order: Call it what you want — it’s about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trump-immigration-order-ban-no-ban234477........................................................................................................................................6
Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_b omb_plot.html ..........................................................................................................................24
Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kent-shooting-victim-sayshe-was-told-go-back-to-your-own-country/. ...........................................................................10
N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trumpforeign-policy.html?_r=0 ...........................................................................................................6
Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017)..............................................................................................................7
Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science (Nov. 26, 2004) ..........................................................................................................................................7
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)......................................................................................4
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/dhsmemo-contradict-travel-ban-trump/98374184/..................................................................22, 23
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Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004)........................................4
Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963) ......................................................................................................4
Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998) ...........................................2
TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddowshow/trms-exclusive-dhs-document-undermines-trump-case-travel-ban ................................23
Local Civil Rule 7(o) Statement Undersigned counsel confirm, pursuant to Local Civil Rule 7(o) and Rule 29(a)(4), Fed. R. App. P., that (i) no party’s counsel authored the brief in whole or in part; (ii) no party or party’s counsel’ contributed any money that was intended to fund preparing or submitting the brief; and (iii) no person, other than amici curiae, their members and their counsel, contributed money that was intended to fund preparing or submitting the brief.
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INTRODUCTION Amici, the American-Arab Anti-Discrimination Committee, the Center for Constitutional Rights, the Center for Reproductive Rights, the Chicago Lawyer’s Committee for Civil Rights, The Judge David L. Bazelon Center for Mental Health Law, the Mississippi Center for Justice, the National Center for Lesbian Rights, the National Coalition on Black Civic Participation, the Southern Coalition for Social Justice, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, are national and regional civil rights groups interested in the promotion of civil liberties throughout the country, and elimination of discrimination in whatever form. The amici respectfully submit this brief to advance two separate but related arguments. First, amici submit that the balance of equities and public interest weighs heavily in favor of enjoining President Trump’s March 6, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”), as it improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. Second, this compelling public interest is entirely in keeping with the legal protections that the United States Constitution guarantees those affected by the Order. As Plaintiffs contend, the Executive Order targets a religious minority in a manner that demands that this Court apply strict scrutiny to the question of whether it violates the equal protection component of the Fifth Amendment’s Due Process Clause. However, amici write separately to argue that, even if this court were to review the Executive Order under a “rational basis” test, the Order would still violate the Constitution’s equal protection guarantee. Regardless how the Government has sought to characterize or revise the Order after the fact, the evidence demonstrates that it is motivated by animus toward Muslims and those born in the targeted majority-Muslim countries, and not by any demonstrable national security concerns. This motivating animus is not a legitimate government end under any level of scrutiny. As such, the
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Executive Order is unconstitutional. I. SOCIAL CATEGORIZATION AND STEREOTYPING CREATES DANGEROUS
CONDITIONS FOR MEMBERS OF MINORITY GROUPS. A. Stereotyping Minority Groups Creates A Climate For Discrimination. The balance of equities and public interest in this case weighs in favor of enjoining the Executive Order due to the dangerous and discriminatory conditions it engenders. The courts have generally recognized that stereotyping of minority groups has a negative effect on individuals within those groups and creates a climate ripe for discrimination. Categorization, or social categorization, is the natural cognitive process by which people place individuals into particular social groups. Social categorization essentially has the effect of exaggerating between-group differences while minimizing within-group differences, thereby increasing perceived homogeneity within groups. Some categorization is “automatic,” but much categorization is built on social cues. “Stereotyping, prejudice, and discrimination clearly profit from context-driven processes such as categorization . . . .” Susan T. Fiske, “Stereotyping, Prejudice, and Discrimination,” in (D.T. Gilbert, et al., eds.), The Handbook of Social Psychology 391 (4th ed. 1998). In light of the extensive social science research on this subject, the Supreme Court has repeatedly stated that discriminatory stereotypes impact decision making. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (recognizing disparate impact liability in housing decisions to prevent segregated housing patterns that might otherwise result from the role of “covert and illicit stereotyping”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing the role that sex stereotyping played in employment discrimination case, explaining “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision), superseded by statute as
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stated in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability); accord Miller-El v. Dretke, 545 U.S. 231, 268 (2005) (“Subtle forms of bias are automatic, unconscious, and unintentional and escape notice, even the notice of those enacting the bias.”) (citations omitted). Further, the Court’s precedent outlines the negative effects that arise from stereotyping and social categorization. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (addressing Equal Protection claims relating to school integration efforts and recognizing harms traceable to “pernicious” racial classifications and school segregation).
The circuit courts also recognize that social categorization and stereotyping often create the conditions for discrimination in areas such as provision of housing, employment decisions, and police motivations. See Hassan v. City of New York, 804 F.3d, 306 (2d Cir. 2016) (rejecting “appeals to ‘common sense’” which “might be infected by stereotypes” as sufficient to justify police surveillance of Muslim individuals, business, and institutions) (quoting Reynolds v. City of Chicago, 296 F.3d 524, 526 (7th Cir. 2002)); Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) (finding “lack of explicitly discriminatory behaviors” does not preclude a finding of “unlawful animus” in an employment discrimination case because “unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus”) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999)); United States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (recognizing that racial stereotyping continues to play a role in jury selection and the outcome of trials); Eastman Kodak Co., 183 F.3d 42 (holding Title VII’s ban on “disparate treatment because of race” includes “acts based on conscious racial
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animus and . . . employer decisions that are based on stereotyped thinking)); Gonzalez-Rivera v. INS, 22 F.3d 1441, 140 (9th Cir. 1994) (recognizing in police stop case that “officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so”).
Stereotyping of all kinds can be exacerbated through a psychological triggering phenomenon known as “priming.” Priming occurs when “subtle influences . . . . increase the ease with which certain information comes to mind.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness at 69 (2009). In the case of racial stereotyping, which shares many attributes with stereotyping of Muslims, priming an individual with race-based stereotypes can influence later decisions by that individual. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483, 489 (2004). Social science research repeatedly demonstrates that individuals have a persistent tendency to defer blindly to priming from authority figures. See Stanley Milgram, Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371, 375-76 (1963). The connection between state sanctioned discrimination and private harm is clearest in the Court’s decisions in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court recognized that discrimination with the sanction of law raises unique and particular dangers.
The Supreme Court very recently said that discriminatory harm can be heightened when it is officially legitimized. In Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), the Supreme Court held that the use of a defense expert in the sentencing phase of a capital trial to testify that African-Americans are more likely to commit violent crimes constituted ineffective assistance of counsel in violation of the Sixth Amendment. According to the Court, the effect of the racial stereotyping on the jury was “heightened due to the source of the testimony. [The expert] took
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the stand as a medical expert bearing the court’s imprimatur.” Id. at 777. B. The Executive Order Is Based On Stereotypes About Muslims And Arabs As “Anti-American” And “Terrorists.” As in the cases cited above, the Muslim ban bears the imprimatur of the Executive
Branch, engendering precisely the type of discriminatory harms that the Court has held cannot withstand constitutional muster. Since December 7, 2015, when then-candidate Donald Trump issued a written statement calling for a “total and complete shutdown on Muslims entering the United States” in the wake of the terror attack in San Bernardino, California, a “Muslim ban” has been a major item on his policy agenda.1 At that time, his campaign explained that “there is great hatred towards Americans by large segments of the Muslim population.” He also characterized the need for a bar on Muslim and Arab entry into the United States as a way to stop our country from being the “victims of horrendous attacks by people that believe only in Jihad.”2 Before a single vote was cast, President Trump distinguished his campaign by expressly categorizing Muslims as “dangerous” and “terrorists.”
Mr. Trump’s categorization of Muslims has been ongoing. On January 4, 2016, the Trump campaign premiered its first television advertisement. That advertisement told viewers that Trump was “calling for a temporary shutdown of Muslims entering the United States” until doubts about “radical Islamic terrorism” can be “figure[d] out.”3 The link the President drew between “radical Islamic terrorism” and all individual Muslims entering the United States could not be more strongly established. Subsequently, candidate Trump, in a major foreign policy speech on April 27, 2016, stated that “the struggle against radical Islam also takes place in our 1 Helena Horton, Muslim ban statement 'removed' from Donald Trump's website, The Telegraph (Nov. 10, 2016), http://www.telegraph.co.uk/news/2016/11/10/muslim-ban-statement-removedfrom-donald-trumps-website/. 2 Id. 3 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (Dec. 8, 2015), http://edition.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
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homeland. . . . We must stop importing extremism through senseless immigration policies.”4 Again, through allusion to the individual Muslims entering the United States through legitimate means, Trump emphasized that he draws a connection between individual Muslims and the “struggle against radical Islam.”
Just one week after his Inauguration, President Trump acted to fulfill his campaign pledge and codify his campaign rhetoric. On January 27, 2017, he signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Jan. 27, 2017). Among the immigration restrictions contained in Executive Order 13,769 was a temporary ban of all nationals from seven majority-Muslim countries from entering the United States: Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia. Section 1 of E.O. 13,769 explained that the Order is intended to ensure that the United States stays “vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
While many surrogates of the current Administration pushed back at the characterization of E.O. 13,769 as a “Muslim ban,” the President embraced it, which demonstrated his embrace of the social categorization of Muslims as “dangerous” and “terrorists.” He told the public via Twitter that “[c]all it what you want, [E.O. 13,769] is about keeping bad people (with bad intentions) out of country!”5 Throughout his campaign, and now in office, President Trump has voiced his view of Muslims as threats to national security.
After multiple courts enjoined enforcement of E.O. 13,769, the Trump Administration
4 N.Y. Times, Transcript: Donald Trump’s Foreign Policy Speech (April 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html?_r=0. 5 Louis Nelson, Trump on immigration order: Call it what you want — it's about keeping ‘bad people’ out, Politico.com (Feb. 1, 2017), http://www.politico.com/story/2017/02/trumpimmigration-order-ban-no-ban-234477.
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announced plans to make revisions to that order. On March 6, the Administration issued E.O. 13,780. 82 Fed. Reg. 13,209 (Mar. 9, 2017). The revised Executive Order preserves several core provisions of the prior Order, including the suspension of the United States Refugee Admissions Program for 120 days, and the suspension of entry into the United States of nationals of six of the majority-Muslim countries designated in E.O. 13,769 for 90 days. See §§ 6(a); 2(c). Like E.O. 13769, the new Order targets only majority-Muslim countries.
This official action of marking a social group, Muslims, as a dangerous “fifth column,” only aggravates societal biases against Muslims and Arabs in this country. It creates conditions where violence against Muslims is seen as more acceptable because they are perceived stereotypically as “bad people.” A “sample of U.S. citizens on average viewed Muslims and Arabs as not sharing their interests and stereotyped them as not especially sincere, honest, friendly, or warm.” Susan T. Fiske, et al, Policy Forum: Why Ordinary People Torture Enemy Prisoners, Science, 206, 1482-1483 (Nov. 26, 2004). More recent social science detailing the administration of “implicit association tests” demonstrates both the already-existing climate of prejudice against Muslims and Arabs and the unconscious nature of that bias: “Non-Arab and non-Muslim test takers manifested strong implicit bias against Muslims. These results are in sharp contrast to self-reported attitudes.” C. Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J. L & Pol. 71, 93 (2010). In 2011, the Pew Research Center surveyed Western cultures to determine the characteristics they associate with people in the Muslim world. That survey found that about half of respondents characterized Muslims as “violent,” and more than half characterized Muslims as “fanatical.”6 The Executive Order exacerbates already
6 Pew Research Center, “Muslim-Western Tensions Persist” (July 21, 2011) (online at: http://www.pewglobal.org/2011/07/21/muslim-western-tensions-persist/#) (viewed Mar. 14, 2017).
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existing, but latent, stereotypes and prejudices against individual Muslims in the United States. C. Government Legitimization Of Islamophobic Stereotypes Has Encouraged Violence Against Muslims And Arabs, And Inhibited Millions Of Muslims In The Practice Of Their Religion. There can be no doubt that, given its origin and history, the Executive Order is based on
social categorization of Muslims as “anti-American,” “terrorists,” and those with “hatred for Americans.” In this case, President Trump’s repeated, unsubstantiated claims that Muslims are dangerous, and should be barred from entering the country, are just the “cue” needed to release other suppressed discrimination and violent beliefs held by those harboring ill will or unconscious bias against Muslims. The President’s deliberate stereotyping of Muslims as “dangerous” and “terrorists” and his ban on the immigration of Muslims and Arabs into the country, places an official “imprimatur” on those stereotypes, magnifying their effect.
When someone in a position of authority, as President Trump, categorizes Muslims as dangerous and terrorists, he creates the message that Muslims are “outsiders” and not full members of the political community. In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309 (2000), the Court found unconstitutional a school sponsored religious message, delivered over the school’s public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to a school policy. The Court’s reasoning was based on its view that the school policy created two classes of people—those who adhered to the favored religion, and those who did not. Id.
The President’s strong and consistent support of what he calls a “Muslim ban” similarly sends the message that those who adhere to Islam as their religion are not part of American society, as opposed to Christians and non-Muslims, who are favored by the ban. In doing so, he “send[s] a message to non-adherents [to the Christian faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are
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insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring). The Executive Order and the President’s statements characterize Muslims as homogenous and a national threat. The President’s demonization of Muslims engenders a climate conductive to violence against people seen as Muslims.
In the short aftermath of the Executive Order and its predecessor, E.O. 13,769, and their chaotic implementation, anti-Muslim hate crimes have flourished. The February 22, 2017 shootings of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot in Olathe, Kansas is the most horrifying example of the social categorization of Muslims as enemies of the American people. Kuchibhotla and Madasani, two engineers at a local technology company, and both Indian immigrants to the United States, had gathered with co-workers at a bar near their office to watch a local college basketball game. Also at that bar was Adam Purinton, a 51-year-old U.S. Army veteran who mistook both Kuchibhotla and Madasani as Iranians (which is one of the nationalities categorized by the Executive Order and its predecessor as barred from entry into the United States). Purinton approached and shot at Kuchibhotla and Madasani, telling them to “get out of our country!” Kuchibhotla was killed, and Madasani was wounded, in the incident. Ian Grillot, a patrolman present at the scene, was wounded while attempting to intervene. Purinton fled across the state border into Missouri, telling a bartender in a second bar that he needed to hide out because he had just shot two Iranians. Putting aside Purinton’s stereotyped view that his victims were Iranians simply because they appeared to be foreign-born immigrants, his actions demonstrate the danger that social categorization can cause by exaggerating both the distance between in-groups (“real Americans”) and out-groups (“Iranians”), as well the homogeneity of the out-group. As the Southern Poverty Law Center described the Olathe violence, “shocking hate crimes” “emerge not from a vacuum, but always from an environment that encourages and
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fosters [that] kind of violence.”7
In addition, a rash of arsons and vandalism at mosques has plagued the United States
surrounding the issuance of E.O. 13,769. On January 27, 2017, the very date of the first order, a
fire destroyed the Islamic Center of Victoria, Texas. On February 24, 2017, a blaze broke out in
the entrance of the Daarus Salaam Mosque near Tampa, Florida. Combined with two arsons of
mosques shortly before President Trump’s inauguration, the United States has seen a surge of
hate crimes against the Muslim community that is unprecedented. A spokesperson at the
Southern Poverty Law Center told reporters that “four mosques being burned within seven weeks of each other” was “part of a whole series of dramatic attacks on Muslims.”8
Other recent attacks on mosques in the United States include a rock thrown through a
window of the Masjid Abu Bakr mosque in Denver, Colorado and vandals destroying the
entrance sign at the Muslim Association of Puget Sound in Redmond, Washington. On March 5,
2017, a Sikh man was shot in his Kent, Washington driveway when a man approached him and said “go back to your own country.”9
Rather than incitement of crime and hatred, the public interest in this county is best
served by tolerance of different religions as the Constitution requires, and tolerance of both
foreign-born and American-born adherents of different religions. The insidious effect of the
Muslim and Arab ban does not impact merely those persons seeking to enter the United States
7 David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99-%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 8 Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/ albertsamaha/four-mosques-burn-as-2017-begins?utm_term=.rhx3bJRw6#.wcxEQDMKP. 9 Matt Day, Sikh man in Kent says he was told, ‘Go back to your own country’ before he was shot, Seattle Times (Mar. 4, 2017), http://www.seattletimes.com/seattle-news/crime/kentshooting-victim-says-he-was-told-go-back-to-your-own-country/.
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from the six designated countries. By promoting malevolent social stereotypes and fueling violence against a minority, the Executive Order fundamentally threatens the American ideal of a diverse society made up of different of ethnic groups, races, and religions. II. THE EXECUTIVE ORDER IS NOT RATIONALLY RELATED TO A
LEGITIMATE GOVERNMENT INTEREST Plaintiffs’ Motion for a Preliminary Injunction sets forth in detail why the Executive Order discriminates on the basis of national origin and religion and thus is subject to strict scrutiny review. See ECF No. 35. Amici agree with Plaintiffs that the Executive Order is properly subject to, and fails, strict scrutiny. Amici write separately to argue that, even if the Executive Order were reviewed under a more deferential standard for which Defendants presumably will advocate,10 the Order would still violate the Equal Protection Clause because it is motivated by an animus toward Muslims and those born in the targeted majority-Muslim countries, and has no rational relationship to any legitimate governmental purpose. A. Animus Towards A Particular Group Is Not A Legitimate Government
Interest. Strict scrutiny under the equal protection clause applies where the Government singles out a suspect class or interferes with the exercise of a fundamental right. Where strict scrutiny applies, the challenged law is presumed to be invalid, and will survive judicial review only if the Government can show that it is “narrowly tailored” to further “compelling governmental interests.” See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (citation and internal quotation marks omitted). In contrast, the rational basis standard treats governmental conduct as
10 In the related Washington v. Trump proceeding, Defendants argued that the Executive Order was actually not subject to any standard of review and was, in fact, unreviewable because it related to immigration and national security. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The Ninth Circuit rejected this argument noting that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Id. at 1162.
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presumptively valid, placing the burden on the challenger to prove that such conduct is not “rationally related to a legitimate state interest.” See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, the level of scrutiny is often a key factor in determining the outcome of an equal protection challenge to government action.
Government action fails even the more forgiving rational basis test, however, where it evinces animus directed against an unpopular group. As discussed below, where the history of a law reflects that it was motivated by animus against a particular class of people, the Court must give “careful consideration” to the government’s stated justification for the law. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). In such circumstances, courts will apply a more searching review to the stated justifications for the policy in order to determine whether the policy is, in fact, motivated by impermissible animus. In his concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Judge Holmes explored in depth the current state of what he called “animus” jurisprudence. Id. at 1097-103 (Holmes, J., concurring). He concluded that:
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. Id. at 1103; see Windsor v. United States, 699 F.3d 169, 180–81 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute”) (citation and internal quotation marks omitted); Am. Exp. Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 691–93 (6th Cir. 2011) (noting that where Supreme Court found “that the legislation at issue was in fact intended to further an improper government objective,” it applied “rational basis with a bite”)
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(internal quotation marks omitted); Coburn ex rel. Coburn v. Agustin, 627 F. Supp. 983, 990–91 (D. Kan. 1985) (“In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required.”).11
Because animus is not a legitimate government interest, a long line of Supreme Court precedent holds that laws motivated by animus are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment (if enacted by state or local governments) and/or the Due Process Clause of the Fifth Amendment (if enacted by the federal government).
In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court considered a Fourteenth Amendment challenge to a Texas statute that both denied state funding for the education of children not “legally admitted” into the United States and authorized school districts to deny enrollment to such children. The Court recognized that undocumented aliens did not constitute a suspect class, and that public schooling was not a Constitutional right.12 Nonetheless, in recognition of the seminal role that education occupies in the nation’s political and cultural heritage, and in the development of productive contributors to American society, the Court held that denying education to the entire class of undocumented alien children would be rational only if it furthered some substantial state goal. The Court then carefully reviewed the State’s purported bases for the legislation, which included deterring unlawful immigration, avoiding “special burdens” on the State’s educational system allegedly created by undocumented alien
11 See also Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759–60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne, Moreno, and Romer “depart[s] from the usual deference associated with rational basis review” and “commentators have correctly discerned a new rational basis with bite standard in such cases”). 12 The Supreme Court has recognized four suspect classes: race, religion, nationality, and alienage. The Court has also recognized two quasi-suspect classes—gender and illegitimacy—to which it applies a level of review known as intermediate scrutiny. See, e.g., Cleburne, 473 U.S. at 440-41.
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students, and refusing public education to a class of children deemed less likely to remain in the State and therefore make productive use of that education. Finding that the legislation would not meaningfully further any of these goals, and that a desire to punish children was not a legitimate government interest, the Court struck down as irrational a law that promoted “the creation and perpetuation of a subclass of illiterates within our boundaries.” Id. at 220, 230.
In Cleburne, the Court struck down a zoning ordinance that required special use permits for homes for individuals with Down syndrome, while not requiring such permits for various other residential facilities, including apartment houses, multi-family dwellings, boarding houses, and fraternity and sorority houses. The Court declined to treat those with an intellectual disability as a suspect or quasi-suspect class, and so applied rational basis review. However, the Court conducted a searching review of the stated reasons for the ordinance, and concluded that none of them provided any legitimate basis for differential treatment of the affected group.
One of the City’s purported justifications for the permit requirement was concern about “negative attitudes” of neighbors living close to a facility for the mentally disabled, and “fears” of elderly residents in the community. In finding that this stated justification lacked a rational basis, the Court noted that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for people with mental disabilities differently from apartment houses, multiple dwellings, and the like.” Id. at 448. Of particular relevance here, the Court stated that the Government “may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. Finding no evidence that the ordinance was rationally related to the objectives urged by the City, the Court concluded that “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Id. at 450.
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In Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated an amendment to the Colorado state constitution that nullified state laws prohibiting discrimination against same-sex couples. Because the Court did not view sexual orientation as either a suspect or quasi-suspect class, it once again applied rational basis scrutiny. The Court noted, however, the almost unprecedented nature of the challenged law in specifically targeting a particular class of individuals:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. As the Court observed, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Id. The demand that “the classification bear a rational relationship to an independent and legitimate legislative end” serves to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 632-33. The Court observed that “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” and that a law denying one group of citizens the ability “to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633. Accordingly, the Court held that the amendment was “inexplicable by anything but animus toward the class it affects,” and, as such, “lack[ed] a rational relationship to legitimate state interests.” Id. at 632. The Court has also struck down federal legislation targeted at particular groups as violative of the principles of equal protection incorporated into the Fifth Amendment’s Due
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Process Clause. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Supreme Court found that a provision of the Food Stamp Act, which excluded from participation
any household that contained an individual unrelated to any other member of the household, was
passed to prevent hippies and hippie communes from participating in the program. The group
adversely affected by the legislation—hippies—was not a “suspect class” to which strict scrutiny
would be applied. Thus, the Supreme Court applied rational basis scrutiny to the challenged
provision. It nonetheless struck it down, reasoning that:
if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, a purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the [classification].
Id. at 534-35 (citation omitted). The Court recognized that, while “[t]raditional equal protection
analysis does not require that every classification be drawn with precise ‘mathematical nicety,’”
the classification before it was “not only ‘imprecise’, it is wholly without any rational basis.” Id.
at 538.
Most recently, in striking down the Defense of Marriage Act (“DOMA”), the Supreme
Court held that “[i]n determining whether a law is motived by an improper animus or purpose,
‘[d]iscriminations of an unusual character’ especially require careful consideration.” Windsor,
133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The Court went on to state:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.
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Id. at 2693. After reviewing the history of DOMA’s enactment, the text of the statute, and its far-ranging adverse impacts on same-sex married couples, the Court found it violated the Equal Protection Clause because “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695.
B. The Executive Order Is Based On An Animus Toward Muslim Immigrants, Which Is Not A Legitimate Government Interest.
Here, the record establishes that, just like the laws in Moreno, Plyler, Cleburne, Romer, and Windsor, the Executive Order was motivated by an impermissible animus against particular classes of individuals, and thus violates the most fundamental principles of equal protection.
First, as noted in Plaintiffs’ Brief, the Executive Order restricts entry into the country and/or travel outside the country of individuals based solely on their national origin. Accordingly, even applying “the most deferential of [equal protection] standards,” the Order’s targeting of individuals from the identified countries would be permissible only if there exists a “relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632.
Second, although national origin distinctions may not seem as overtly pernicious in the area of immigration regulation, the background to the Executive Order reflects that the use of national origin designations was a surrogate for targeting individuals practicing the Muslim faith. As noted earlier, while a candidate, President Trump advocated for a complete bar on Muslims entering the United States. See Aziz v. Trump, No. No. 1:17-CV-116-(LMB/TCB), 2017 WL 580855, at *4 (E.D. Va. Feb. 13, 2017). After receiving pushback concerning the legality of his proposed Muslim Ban, then-candidate Trump telegraphed that, in order to accomplish his objective of banning Muslims while potentially subverting judicial review, he would use territories that were predominately Muslim as a surrogate for targeting Muslims directly. In
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response to a question about whether he had changed his position that Muslims should be banned, Trump stated “call it whatever you want. We’ll call it territories, OK?” Aziz, 2017 WL 580855, at *4; see also Amended Compl. ¶ 59 (“People were so upset when I used the [word] Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim”) (citing Meet the Press, NBC, July 24, 2016.) (internal quotation marks omitted).
President Trump signed Executive Order No. 13,769 on January 27, 2017. Soon thereafter, Rudy Giuliani, who advised the Trump Campaign, admitted that it was meant to effectuate the Muslim ban while circumventing judicial scrutiny. Amended Compl. ¶ 69 (“So when [Mr. Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”) (internal quotation marks omitted). In fact, hours before signing Executive Order No. 13,769, President Trump had belied its “territorial,” non-religious focus by publically stating that Christians from the seven impacted nations would be given priority as refugees. Id. at ¶ 68; see also Aziz, 2017 WL 580855, at *4. This unapologetically transparent record of the invidious motivation behind the Executive Order undermines the Government’s post hoc efforts to attribute a lawful purpose to its action.
As U.S. District Judge Brinkema of the Eastern District of Virginia concluded in enjoining the original Executive Order as violative of the establishment clause, “[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Aziz, 2017 WL 580855, at *8. The Court thus found that there was “direct evidence” that the Executive Order was an attempt to find a legal way to impose a ban on Muslims entering the United States. Id. at *9. The Government, however, cannot evade the strictures of the
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Constitution merely by “deferring to the wishes or objections of some fraction of the body politic.” Cleburne, 473 U.S. at 448.
After multiple courts, including the Eastern District of Virginia, stayed or preliminarily enjoined the first iteration of the order, President Trump signed the revised version that is now before the Court. Although the Executive Order at issue here eliminates some of the more egregious provisions of the prior order (e.g., it no longer applies to lawful permanent United States residents), it continues to be the means for implementing the anti-Muslim animus that gave rise to the first order. It still targets only Muslim-majority countries, and contains no legitimate justification for suspending entry into the United States of those born in those countries. In fact, Stephen Miller, a senior advisor to President Trump, declared that the Executive Order contains only “minor technical differences” from the prior order in an attempt to respond to the “flawed” and “erroneous” judicial rulings striking the first order down, and that it will “fundamentally have the same policy outcome for the country.”13
It is therefore hardly surprising that the Federal District Courts of both Hawai‘i and Maryland have concluded that the new Executive Order remains motivated by impermissible animus towards Muslims. See Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *13 (D. Haw. Mar. 15, 2017) (analyzing statements of President Trump and his administration and determining that the current Executive Order remained motivated by “religious animus”); accord Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1018235, at *13 (D. Md. Mar. 16, 2017), appeal docketed, No. 17-1351 (4th Cir. Mar. 17,
13 Fox News, Trump adviser says new travel ban will have ‘same basic policy outcome’ (Feb. 21, 2017), http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-ban-willhave-same-basic-policy-outcome.html.
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2017).14 The Hawai‘i court in particular found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Hawai‘i, 2017 WL 1011673, at *13.
President Trump campaigned on a promise that he would institute a “Muslim Ban,” and both he and his advisors have publically stated that the Executive Order is an attempt to accomplish that ban while subverting the courts’ ability to subject it to Constitutional review. This Court should take the President and his advisors at their word. Cf. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 865-66 (2005) (in affirming the relevance of the background to and history of challenged legislation, the Court noted that “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions . . . .”).
C. The Government’s Stated Basis For The Executive Order, National Security, Is A Pretext For Impermissible Animus Towards Muslims
Given the clear animus towards Muslims that gave rise to the Executive Order, the Supreme Court’s jurisprudence would require careful judicial examination of the stated justification for the Order, safeguarding national security, even if the Court determined that, as an executive action regarding immigration, the Executive Order is subject to rational basis review. That the Government’s justification for this policy is national security does not lessen this Court’s duty to ensure the policy is constitutional. Washington, 847 F.3d at 1163 (“[F]ederal courts routinely review the constitutionality of—and even invalidate—actions taken by the
14 In striking down the Executive Order as violative of the Establishment Clause, neither court reached the question of whether the Executive Order also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
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executive to promote national security, and have done so even in times of conflict.”).15 Any meaningful review demonstrates that the purported national security justification for the Executive Order is merely a pretext for anti-Muslim animus.
The Executive Order suspends immigrant and refugee entry into the United States of aliens from Syria, Iran, Libya, Sudan, Yemen, and Somalia for 90 days. Section 1 of the Order is titled “Policy and Purpose.” There, it states that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.” Executive Order, Section 1(h). Remarkably, the Executive Order then identifies only one such individual who was born in any of the affected countries.16 It goes on to state that “[t]he Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” However, the Executive Order makes no effort to tie these general claims about terrorism to the specific Muslim-majority countries on the Executive Order. Nor does the Executive Order afford a breakdown of whether these persons have actually committed terrorist acts, as opposed to merely having been the subject of investigations.
In fact, since 1975, not a single American has been killed in a terrorist attack by a person born in any of the six countries.17 The impacted countries also are unrelated to terrorism-related
15 See also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”) 16The Order also identifies two individuals from Iraq, a country not subject to the blanket prohibitions contained in the revised Order. 17 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute (Jan. 26, 2017), https://www.cato.org/blog/guide-trumpsexecutive-order-limit-migration-national-security-reasons.
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arrests. For instance, not a single immigrant from Libya or Syria, two countries targeted by the
Executive Order, was arrested on terrorism charges between 1975 and 2015. In contrast, nine
immigrants from Croatia and eleven from Cuba, two countries unaffected by the Executive Order, were arrested on terrorism related charges in that timespan.18
Nor can the Executive Order’s singling out of the designated Muslim countries be
justified, as Section 1(d) purports to do, by citing their supposedly questionable vetting
procedures for immigrants. In a March 6, 2017 interview with CNN, Secretary of Homeland
Security John Kelly admitted that there are an additional “13 or 14 countries, not all of them
Muslim countries, not all of them in the Middle East, that have questionable vetting procedures . . . .”19 Once again, the Government merely uses these vetting procedures as a pretext for a law
targeted at Muslims. The Executive Order simply does not contain a shred of factual support for
a broad sweeping travel ban against natives of the particular identified countries.
To the contrary, recently publicized documents from the Department of Homeland
Security contradict the security justification for the Executive Order. In fact, one document is titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States.”20 In
analyzing terrorist attacks since 2011, it finds no relationship between those attacks and
citizenship:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals . . . died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization . . . . Of the 82 individuals we
18 Id. 19 Daniella Diaz, Kelly: There are ‘13 or 14’ more countries with questionable vetting procedures, CNN.com (Mar. 7, 2017), http://www.cnn.com/2017/03/06/politics/john-kellytravel-ban-muslim-countries/. 20 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-contradict-travel-bantrump/98374184/.
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identified, slightly more than half were native-born United States citizens. Of the foreign born individuals, they came from 26 countries, with no one country representing more than 13.5 percent of the foreign-born total.21
The report further finds that “[r]elatively few citizens of the seven countries impacted by
[Executive Order 13,769], compared to neighboring countries, maintain access to the United
States,” and that “[f]ew of the [i]mpacted [c]ountries [h]ave [t]errorist [g]roups that [t]hreaten the
West.”22
Another memorandum from the Department of Homeland Security undercuts the other
purported justification for Executive Order, the need to enhance screening procedures for
individuals traveling from the six targeted countries. The Department of Homeland Security
memorandum questions the link between screening practices in general and preventing terrorism.
It concludes that:
We assess that most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns. We base this assessment on our findings that nearly half of the foreign-born, US-based violent extremists examined in our dataset were less than 16 years old when they entered the country and that the majority of foreign-born individuals resided in the United States for more than 10 years before their indictment or death. A separate DHS study that found that recent foreign-born US violent extremists began radicalizing, on average, 13 years after their entry to the United States further supports our assessment.23
In fact, the Executive Order’s reference to terrorist activities by the lone native of an affected
country—a Somalian refugee convicted on terrorism charges—proves the point. Executive
Order, Section 1(h). Mohamed Osman Mohamud came to the United States as a child refugee at
21 Id. at 1. 22 Id. at 2. 23 TRMS Exclusive: DHS document undermines Trump case for travel ban, MSNBC (Mar. 2, 2017), available at http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-documentundermines-trump-case-travel-ban.
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the age of five; however, his arrest on terrorist-related charges occurred when he was 19-years old.24 As the Department of Homeland Security memorandum notes, “screening and vetting
officials” are not likely to be able to account for radicalization that occurs 14 years after entry.
Taken together, these Department of Homeland Security memoranda demonstrate the
pretextual nature of the national security justification for imposing an immigration ban on these
six Muslim-majority nations. The Department of Homeland Security does not find citizenship to
be a likely indicator of future terrorist activity and does not find enhanced screening procedures
to be an effective method of preventing terrorists from entering the country. Thus, an Order that
imposes an immigration ban on the basis of citizenship (as a pretext for religion) in order to
enhance future screening processes flies in the face of the assessment of the very government
agency charged with protecting national security from terrorist threats.
National security experts also concur that the Executive Order is not rationally related to
national security. In Aziz, the court preliminarily enjoined Executive Order 13,679 and, in doing
so, credited a declaration from 10 national security professionals who did not believe that the
Executive Order was related to any security interest. They stated:
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Aziz, 2017 WL 580855, at *3. Following the issuance of the new Executive Order, more than
130 members of American’s foreign policy establishment have issued a letter publically 24 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), http://www.oregonlive.com/portland/index.ssf/2010/12/suspect_in_portland_bomb_plot.html.
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denouncing the travel ban as damaging to national security.25 The authors of the letter, who include former Secretaries of State John Kerry and Madeline Albright, conclude:
The revised executive order will jeopardize our relationships with allies and partners on who we rely for vital counterterrorism cooperation and information-sharing. To Muslims—including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision.26 In sum, although passed under the pretext of national security, the Executive Order does not bear any rational relationship to concerns about national security or any other legitimate government interests. Instead, as was clear by the President’s statements prior to his signing the Order, it is motivated by religious animus towards Muslims. Such a law cannot be allowed to stand in our society. As the Moreno Court recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534-45. III. CONCLUSION For the foregoing reasons, the Court should grant the requested injunction against implementation of the Executive Order.
25 Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html. 26 Id.
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DATED: March 28, 2017

Respectfully submitted,
/s/ Lynne Bernabei Lynne Bernabei (Bar No. 938936) bernabei@bernabeipllc.com Alan R. Kabat (Bar No. 464258) kabat@bernabeipllc.com Christopher Sousa (Bar No. 1018547) sousa@bernabeipllc.com BERNABEI & KABAT, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7102 (202) 745-1942 (202) 745-2627 (Fax)
Ted G. Dane Ted.Dane@mto.com Thomas P. Clancy Thomas.Clancy@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 683-5137
Counsel for Amici Curiae

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 Case 1:17-cv-00255-TSC Document 61 Filed 03/31/17 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center, Iranian American Bar Association, National Iranian American Counsel, Public Affairs Alliance of Iranian Americans, Inc., et al.,

Civil Action No. 1:17-cv-255 (TSC) Electronically Filed

Plaintiffs, v.

Hon. Tanya S. Chutkan

Donald J. Trump, et al.,

Defendants.

Proposed Brief Amicus Curiae of Howard University School of Law Civil Rights Clinic on Behalf of Law Professors
In Support of Plaintiffs Pars Equality Center, et. al.

KARLA MCKANDERS
Counsel of Record HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC 2900 Van Ness Street NW Washington, DC (202) 806 - 8065 Karla.McKanders@law.howard.edu

DARIN JOHNSON HOWARD UNIVERSITY SCHOOL OF LAW 2900 Van Ness Street NW Washington, DC (202) 806 – 8067 DJohnson2@law.howard.edu

Counsel for Amicus Curiae

Case 1:17-cv-00255-TSC Document 61 Filed 03/31/17 Page 2 of 49
TABLE OF CONTENTS
Table of Authorities............................................................................................................iii
Statement of Interest ............................................................................................................ 1
Argument ............................................................................................................................. 2
I. The Executive Order Inflicts Irreparable Harm by Diminishing the Strength and Mission of American Institutions of Higher Education which thrive on diversity and the free exchange of ideas across borders, including from students and scholars from Muslim-majority countries. .................................................................................................................. 3 A. Diverse Students and Scholars from Muslim-Majority Countries Contribute to the Free Exchange of Ideas that Strengthen Institutions of Higher Education in the United States. ............................................................................................................ 3
B. The Executive Order Has Adversely Impacted U.S. Colleges and Universities’ Recruitment of Talented Students and Scholars, Research, and Capital. ................................................................... 6
C. The Executive Order Adversely Impacts American Higher Education’s Crucial Role in Building Mutual Cross-Cultural Understanding Which Enhances Friendly Relations Between Nations......................................................................................................... 13
II. The Executive Order Inflicts Irreparable Harm by Legitimizing AntiMuslim Suspicion and Antagonism That Has Led to Increased Hate Incidents and Violence against Muslim-American and Foreign Muslim Faculty, Staff and Students on University and College campuses across the country. ................................................................................. 19
Conclusion ......................................................................................................................... 27
Appendix A – Student Impact Statements........................................................................... 1
Appendix B – List of Signatories ...................................................................................... 12
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TABLE OF AUTHORITIES
Cases Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) ...................... 20
Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) .......................................... 20
Grutter v. Bollinger, 539 U.S. 306 (2005) ...................................................................... 3, 4
Korematsu v. United States, 323 U.S. 214, 217 (1944) .............................................. 20, 21 Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................... 20 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .................................................................. 20 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ...................................... 20 Sipuel v. Bd. of Regents of Univ. of Okl., 332 U.S. 631 (1948) ........................................ 20 State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) .................................... 20 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .................................................. 2 Regulations Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) .................................. 8, 10, 12 Exec. Order No.13,780, 82 Fed. Reg. 13, 209 (Mar. 6, 2017) ................................... passim National Archives and Records Administration, 7 Fed. Reg. 1407 (Feb. 25,
1942)............................................................................................................................... 25 Other Authorities AACRAO, Trending Topics Survey: International Applicants for Fall
2017- Institutional and Applicant Perceptions, 1 (Mar. 13, 2017), http://www.aacrao.org/docs/default-source/TrendTopic/Immigration/intlsurvey-results-released.pdf........................................................................................... 7, 8
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Academics Against Immigration Executive Order, https://notoimmigrationban.com/ ................................................................................... 11
Alexandra Kurland, GU Students Protest Trump’s Muslim Ban (Feb. 26, 2017) http://guprogressive.com/gu-students-protest-trumps-muslim-ban..................... 32
Amy Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’, Washington Post, (Jan. 29 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trumpasked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-doit-legally/?utm_term=.9541ebd63d8b ............................................................................ 27
Bangladesh Ministry of Foreign Affairs, President’s Life Sketch Prof. Dr. Iajuddin Ahmed, WebArchive.org, https://web.archive.org/web/20070810115053/http://www.mofa.gov.bd/p resident.htm .................................................................................................................... 19
BBC, US-Iran relations: A brief guide (Nov. 24, 2014) http://www.bbc.com/news/world-middle-east-2431666................................................ 15
Caitlin Dickerson & Stephanie Saul, Campuses Confront Hostile Acts Against Minorities After Donald Trump’s Election, N.Y. Times, Nov. 10, 2016 .......................................................................................................................... 29, 31
CIA, The World Factbook, CIA.gov https://www.cia.gov/library/publications/the-world-factbook/........................................ 5
Collin Binkley, Travel Ban Throws Research, Academic Exchange Into Turmoil, AP News (Jan. 31, 2017), http://bigstory.ap.org/article/43b52752391f45c8a416ec6f8928a02c/travel -ban-throws-research-academic-exchange-turmoil............................................ 10, 11, 12
Conor Gaffey, A Short History of Somali-U.S. Relations, Newsweek (Aug. 10, 2016) http://www.newsweek.com/short-history-somali-us-relations489125 ............................................................................................................................ 16
Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration .............................................................. 27
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Elizabeth Reddin, In Protest of Trump Entry Ban, Some Scholars are Boycotting U.S.-Based Conferences, Inside Higher Education (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trumpentry-ban- some-scholars-are-boycotting-us-based-conferences............................. 12, 13
FBI, 2015 Hate Crime Statistics, Uniform Crime Reporting, https://ucr.fbi.gov/hate-crime/2015................................................................................ 28
George Baghadid, U.S.-Syria Relations: Rollercoaster Diplomacy, CBS News (May 24, 201) http://www.cbsnews.com/news/us-syria-relationsrollercoaster-diplomacy.................................................................................................. 15
Global Green Growth, Press Release: President of Indonesia Yudhoyono announced as next GGGI Assembly President and Council Chair at GGGI Leaders’ Gathering, GGGI.org (Sept. 23, 2014), http://gggi.org/president-of-indonesia-yudhoyono-announced-as-nextgggi-assembly-president-and-council-chair-at-gggi-leaders-gathering ......................... 19
Hannah Natanson & Claire E. Parker, Faust, Administrators Criticize Immigration Order, The Harvard Crimson, (Jan. 30, 2017), https://www.thecrimson.com/article/2017/1/30/faust-immigration-email .................... 32
Harvard Crimson, Benazir Bhutto ’73 Assassinated, TheCrimson.com (Dec. 27, 2007), http://www.thecrimson.com/article/2007/12/27/benazir-bhutto73-assassinated-pakistani-opposition ............................................................................. 19
In Solidarity with People Affected by the ‘Muslim Ban’: Call for an Academic Boycott of International Conferences Held in the US,” https://docs.google.com/forms/d/e/1FAIpQLSeNN_2HHREt1hdm_CgWpFHw8NDPGLCkOwB4lLRFtKFJqI25w/viewform .................................... 13
Institute of International Education, International Student Totals by Place of Origin 2014/15- 2015/16, Open Doors Data (2016), http://iie.org/Research-and-Publications/Open-Doors/Data/InternationalStudents/All-Places-of- Origin/2014-16 ...................................................................... 4, 5
Institute of International Education, Open Doors Fact Sheet: Iran, Open Doors Data, (2016), http://www.iie.org/ Research-and-Publications/ Open-Doors/Data/Fact-Sheets-by-Country/2016#.WNV9kqK1tPY............................. 14
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Jackie Northam, As Yemen's War Worsens, Questions Grow About The U.S. Role, NPR (Oct. 11, 2016) http://www.npr.org/sections/parallels/2016/10/11/497563923/u-sreconsiders-support-of-saudi-led-coalition-in-yemen-conflict ...................................... 16
Jeffrey Gettleman, United States to Lift Sudan Sanctions, N.Y. Times (Jan 13, 2017) https://www.nytimes.com/2017/01/13/world/africa/sudansanctions.html................................................................................................................. 15
Joel Brown, Hundreds Protest Trump’s Immigration Ban at Marsh Plaza Rally (Jan. 31, 2017) https://www.bu.edu/today/2017/rally-against-trumpmuslim-immigration-ban.......................................................................................... 32, 33
Julia Preston, Campuses Wary of Offering Sanctuary to Undocumented Students, N.Y. Times (Jan. 26, 2017), https://www.nytimes.com/2017/01/26/education/edlife/sanctuary-forundocumentedstudents.html?utm_source=AOL&utm_medium=readMore&utm_campai gn=partner ...................................................................................................................... 33
Kathleen Struck, ’Match Day’ For Foreign Medical Students Runs Into US Travel Ban, VOA News (Mar. 18, 2017), http://www.voanews.com/a/usmedical-residency-programs-trump-travel-ban/3771735.html. ................................. 9, 10
Margaux MacColl, Students host ‘walkout’ to protest Muslim Ban (Feb. 1, 2017), http://www.northbynorthwestern.com/story/students-hostwalkout-to-protest-muslim-ban...................................................................................... 32
Masood Farivar, Hate Crimes in US Rising, Particularly in Big Cities, VOA News (Mar. 09, 2017), http://www.voanews.com/a/us-hate-crimesrising-particularly-in-big-cities/3756604.html................................................... 27, 28, 29
Monica Lungu, Where Have the World Leaders Pursued Their Higher Education, MastersPortal.eu (Apr. 27, 2016), http://www.mastersportal.eu/articles/1724/where-have-the-world-leaderspursued-their-higher-education.html.............................................................................. 18
Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18.1 Ind. J. Global Legal Stud. 87, 90 (2011), http://scholarship.law.cornell.edu/facpub/187 ............................................................... 24
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NAFSA: Association of International Educators, NAFSA International Student Economic Value Tool, NAFSA.org, http://www.nafsa.org/Policy_and_Advocacy/Policy_Resources/Policy_Tr ends_and_ Data/NAFSA_International_Student_Economic_Value_Tool.................... 14
NAFSA: Association of International Educators, Restoring U.S. Competitiveness for International Students and Scholars (June 2006), http://www.nafsa.org/uploadedfiles/nafsa_home/resource_library_Assets/ public_policy/ restoring_u.s.pdf..................................................................................... 22
Neil G. Ruiz, The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations, Metropolitan Policy Program at Brookings Institution, 9 (August 2014), https://www.brookings.edu/wpcontent/uploads/2014/08/foreign_students_final.pdf..................................................... 13
New York Times, Not Forgotten: Obituaries, N.Y. Times (June 21, 2016), https://www.nytimes.com/interactive/projects/cp/obituaries/archives/bena zir-bhutto. ....................................................................................................................... 18
Nobel Media AB, The Nobel Peace Prize 2001, Nobelprize.org, https://www.nobelprize.org/nobel_prizes/peace/laureates/2001 ................................... 17
Nobel Media AB, The Nobel Peace Prize 2016, Nobelprize.org, http://www.nobelprize.org/nobel_prizes/peace/laureates/2016 ..................................... 18
Raj Haldar, Indian Americans won’t be safe as long as the White House is inciting fear, Washington Post (Mar. 14, 2017), https://www.washingtonpost.com/posteverything/wp/2017/03/14/indianamericans-wont-be-safe-as-long-as-the-white-house-is-incitingfear/?utm_term=.36316116187e .................................................................................... 31
Remarks by Robert Quinn, SAR Executive Director, “We Leave Our Guns At the Door: The Essential Role of Higher Education” (Mar. 25, 2015), https://forumea.org/wp-content/uploads/2014/09/RQuinn-Forum-onEducation-Abroad-26MAR2015.pdf ............................................................................. 21
Samantha Grasso, NYC students walk out in protest of Trump, DeVos, Muslim ban, The Daily Dot, (Feb. 7, 2017), https://www.dailydot.com/irl/nyc-student-walkout-protest-trump-muslimban .................................................................................................................................. 32
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Sara Custer, US State Department Endorses ‘Education Diplomacy’, Pie News (July 10, 2015), https://thepienews.com/news/us-state-departmentendorses-education-diplomacy....................................................................................... 15
Scholars at Risk Network, About, Scholarsatrisk.org, https://www.scholarsatrisk.org/about............................................................................. 20
Scholars at Risk Network, Getting Involved Handbook, 2 (Apr. 15, 2016), https://www.scholarsatrisk.org/wpcontent/uploads/2016/05/Getting_Involved.pdf ............................................................ 21
Scholars at Risk Network, Protection, Scholarsatrisk.org, https://www.scholarsatrisk.org/protection ..................................................................... 20
Southern Poverty Law Center Report, Ten Days After Harassment and Intimidation in the Aftermath of the Election, 4 (Nov. 2016), https://www.splcenter.org/sites/default/files/com_hate_incidents_report_f inal.pdf................................................................................................................ 28, 29, 30
Stephanie Saul, Amid Trump Effect Fear, 40% of Colleges See Dip in Foreign Applicants, New York Times (Mar. 16, 2017), https://mobile.nytimes.com/2017/03/16/us/international-students-uscolleges-trump.html. ........................................................................................................ 8
U.S. Dep’t of State, Foreign Students Yesterday, World Leaders Today, https://www.csustan.edu/sites/default/files/OIE/documents/yedterdaysinte rnationalstudents.pdf .......................................................................................... 17, 19, 20
United Nations, Former Secretary-General: Kofi Annan, UN.org, https://www.un.org/sg/en/formersg/annan.shtml ........................................................... 17
US-Libya Relations Contentious During Gadhafi's Leadership, VOA News (Oct. 19, 2011) http://www.voanews.com/a/us-libya-relations-werecontentious-during-gadhafis-leadership-132260478/146937.html ................................ 16
World Univ. Rankings 2016-2017, Times Higher Educ., https://www.timeshighereducation.com/world- universityrankings/2017world-ranking# .......................................................................................... 3
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Amici curiae, the Howard University School of Law Civil Rights Clinic,1 along with law professors (listed in Appendix B), submit this proposed brief as amici curiae in support of the Plaintiffs in this case. Amici all share a common interest in ensuring that the President’s March 6 Executive Order does not have an adverse impact on the diversity that strengthens the learning environment at institutions of higher education. We respectfully submit this brief in support of Plaintiffs in the belief that any analysis of the constitutionality of the discriminatory impact of the March 6 Executive Order must take into account the impact upon Muslim students and scholars and the American institutions of higher education that serve them. The CRC urges the Court to award the relief requested by Plaintiffs. 2
STATEMENT OF INTEREST Amici curiae are the Howard University School of Law Civil Rights Clinic and interested law professors. As one of the oldest among historically black colleges and universities, Howard University School of Law has long placed the defense of human rights, equality, and dignity at the heart of its educational practice. While Howard is often referred to as one of the nation’s premier historically Black universities, the University’s mission has always been to provide a premier education to all regardless of race,
1 Counsel obtained consent from the Lawyer’s Committee for Civil Rights to file this amicus brief. The views expressed by Howard University School of Law’s Civil Rights Clinic are not necessarily those of Howard University or the School of Law. 2 No party or party’s counsel authored this brief in whole or in part or contributed money intended to fund preparing or submitting this brief. No person, other than amici, their members, or counsel, contributed money intended to fund preparing or submitting this brief.
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nationality, ethnic origin or gender. Our history and experience in student diversity has also been driven by the clear-eyed acknowledgement that institutions of higher education only flourish when there is diversity of thought and ideas, which is facilitated through diverse scholars, faculty, staff and students.
Howard University School of Law Civil Rights Clinic along with interested law professors serve the unique role of providing this Court with the irreparable harm that the Executive Order will have, and is currently having, on our institutions. Specifically, the Executive Order impacts the strength and mission of institutions of higher education through its diminishment of the diversity and number of international students and scholars, and its legitimization of anti-Muslim suspicion and antagonism which has led to an increase in hate crimes at institutions of higher learning.
ARGUMENT As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). With this brief, Amici seek to provide important insight into how the March 6, 2017 Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States (hereinafter “Executive Order”) inflicts irreparable harm on the plaintiffs, as well as American institutions of higher education, by restricting the free exchange of ideas and persons across borders and by legitimizing anti-Muslim suspicion and antagonism that has led to increased hate incidents and violence against Muslim-
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American and foreign Muslim faculty, staff and students on university and college campuses across the country. 82 Fed. Reg. 13, 209. Amici also seek to demonstrate that the public interest lies firmly in support of injunctive relief, as America thrives when foreign scholars and students are able to freely exchange ideas across borders with U.S. students and scholars in American institutions of higher learning free from antagonism and violence. I. The Executive Order Inflicts Irreparable Harm by Diminishing the Strength
and Mission of American Institutions of Higher Education which thrive on diversity and the free exchange of ideas across borders, including from students and scholars from Muslim-majority countries. A. Diverse Students and Scholars from Muslim-majority Countries
Contribute to the Free Exchange of Ideas that Strengthen Institutions of Higher Education in the United States. American colleges and universities regularly rank among the highest in the world3 and attract students and scholars from around the world because of their global reputation for excellence and inclusion. The free exchange of ideas, students and scholars across borders is a hallmark of American higher education and is essential for U.S. colleges and universities to maintain excellence in their teaching, scholarship and research and to provide a diverse and comprehensive academic experience for students. As the Supreme Court has recognized, U.S. colleges and universities have a compelling interest in obtaining the educational benefits that flow from a diverse student body. Grutter v. Bollinger, 539 U.S. 306, 343 (2005) (holding that diversity is a compelling interest that can justify the
3 See World Univ. Rankings 2016-2017, Times Higher Educ., https://www.timeshighereducation.com/world- university-rankings/2017world-ranking# (last visited Mar. 25, 2017).
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narrowly tailored use of race in selecting applicants for admission to public universities and that the University of Michigan law school’s race-conscious admissions program was sufficiently tailored to achieve that goal). These educational benefits include preparing students for an increasingly global marketplace through exposure to widely diverse people, cultures, ideas and viewpoints.4
The Executive Order temporarily banning travel into the United States from nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen undermines American universities’ ability to attract and admit students and scholars from Muslim-majority nations and threatens their mission to prepare students for a global marketplace through exposure to scholars and students from every region of the planet, including from Muslimmajority nations. The Executive Order also threatens American colleges and universities’ ability to conduct the best research, to produce the best scholarship, and to provide the best instruction by drawing from faculty and scholars from every region of the planet, including from Muslim-majority nations.
During the 2015-16 academic year, 108,227 international students and scholars from the Middle East and North African (“MENA”) region studied, researched and taught at American universities and colleges.5 This was slightly more than ten percent of the 1,043,839 international students and scholars at United States colleges and universities in
4 Id. at 330. 5 Institute of International Education, International Student Totals by Place of Origin 2014/152015/16, Open Doors Data (2016), http://iie.org/Research-and-Publications/OpenDoors/Data/International-Students/All-Places-of- Origin/2014-16.
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the 2015-16 academic year.6 MENA countries covered by the travel ban collectively sent 15,165 students and scholars to the U.S. – 12,269 Iranians, 1,514 Libyans, 783 Syrians, and 599 Yemenis. The other two listed countries, Somalia and Sudan, respectively sent 35 and 253 international participants to the United States out of the 7,690 visiting students and scholars from the East African region. All of the listed countries are Muslim-majority countries, so the travel ban has an outsized impact upon the presence of foreign Muslim students and scholars at American institutions of higher learning.7
The impact of a decline in international students and scholars at American institutions of higher learning cannot be overstated. International students and scholars contribute to the international diversity and inclusion that defines the American educational experience. International students and scholars contribute to enhanced knowledge and global understanding through their teaching, scholarship, research, and contributions both inside and outside of the classroom. The presence of internationally diverse scholars and students on U.S. campuses facilitates important academic discussion, exploration, and understanding that can only occur through exposure to individuals with varying, cultural, religious and national backgrounds, and life experiences. Interactions with diverse faculty
6 Id. 7 According to CIA World Factbook, the Muslim populations are estimated as follows: Iran - 82 million (99.4%); Libya - 6.3 million (96.6%); Syria – 16.6 million (97%); and Yemen – 27 million (99.1%). The CIA World Factbook does not have the specific percentage of the population that practices Islam in Somali and Sudan, as it is the official religion of these nations. One can presumptively estimate Muslim populations to be around 10 million and 36 million respectively. CIA, The World Factbook, CIA.gov https://www.cia.gov/library/publications/theworld-factbook/ (last updated as of Mar. 28, 2017).
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and scholars provides the opportunity for students and faculty alike to have their assumptions challenged and to expand their understanding through exposure to people with beliefs different from their own.
For example, Iranian-American Howard University School of Law Student, SR astutely notes her concern that:
many Americans are not exposed to different cultures. The travel ban only further prevents Americans from being exposed to an educational experience that could diminish their fear and ignorance about an entire culture and religion.8 In an era where ideological and violent conflicts abound around the planet, greater exposure to people with beliefs different from one’s own is needed to contribute to global cross-cultural understanding. B. The Executive Order Has Adversely Impacted U.S. Colleges and
Universities’ Research, Capital, and Recruitment of Talented Students and Scholars. Uncertainty regarding whether the 90-day ban will become permanent has caused students and scholars who otherwise might come to the United States to reconsider their options. In a recent survey conducted by the American Association of Collegiate Registrars and Admissions Officers (“AACRAO”), nearly forty percent of 250 surveyed colleges and universities reported a decrease in applications from international students, with the highest declines in applications from students from the Middle East.9 Thirty-nine percent of
8 Statement in Appendix A. 9 AACRAO, Trending Topics Survey: International Applicants for Fall 2017- Institutional and Applicant Perceptions, 1 (Mar. 13, 2017), http://www.aacrao.org/docs/defaultsource/TrendTopic/Immigration/intl-survey-results-released.pdf
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surveyed institutions report a decline in undergraduate applications for Fall 2017 from the Middle East and thirty-one percent of institutions report a decline in graduate applications for Fall 2017 from the Middle East.10
International student recruitment professionals report a great deal of concern from students and families around the globe, with seventy-nine percent of the concerns raised from the Middle East.11 For example, Muslim Howard University School of Law Student, FS astutely notes his concern that:
As a Muslim student at Howard Law School, I had suggested to the administration to allow me to recruit other students from Muslim majority countries. Now, I cannot do that because, in all honesty, I do not want them to live in the U.S. with the fear of not being able to travel.12 Nearly half of graduate schools have reported a drop in international students and the President of the Council of Graduate Schools stated that graduate deans are describing a “chilling effect” on applications.13 The timing of the Executive Order had a damaging impact on both the size of the applicant pool and the yield of admitted applicants. The January 27 Executive Order was announced as deadlines approached for many graduate programs and the March 6 Executive Order was instituted just as applicants were making enrollment decisions prior
10 Id. at 2. 11 Id. 12 Statement in Appendix A. 13 Stephanie Saul, Amid Trump Effect Fear, 40% of Colleges See Dip in Foreign Applicants, New York Times (Mar. 16, 2017), https://mobile.nytimes.com/2017/03/16/us/internationalstudents-us-colleges-trump.html.
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to the April 15 deadline.14 The AACRAO survey stated that among the most frequently raised concerns by international applicants and their families are: (1) a perception that the climate in the U.S. is now less welcoming to students from other countries, (2) concerns that benefits and restrictions around visas could change around the ability to travel, re-enter after travel, and obtain employment, and (3) concern that the travel ban will expand to include additional countries.15
The anti-immigrant and anti-Muslim rhetoric of the Trump presidential campaign and the issuance of the Executive Orders, are the source of these concerns, the corollary drop in applications and the anticipated drop in international student enrollment. If American universities are unable to guarantee international students and scholars that they will be able to obtain visas and re-enter the United States after going abroad to visit family or to conduct research and attend symposia, American universities will be unable to attract the best foreign talent and will struggle to maintain the diversity of experience and expertise that make U.S. institutions of higher education world class leaders.
The travel ban has already created problems for many foreign-born medical students hoping to come to the United States or to return to the United States to continue their postmedical school training in residency programs at U.S. medical institutions. Match Day, where medical students learn where they will go for their residency, occurred on Friday, March 17, one day after the Executive Order was scheduled to take effect. Of the 42,000
14 Id. 15 AACRAO, supra note 9, at 2.
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applicants for the 32,000 U.S. medical residency positions, all except 6,000 are foreign nationals, which means that six out of seven applicants are foreign nationals.16 The Chair and CEO of the National Residency Match Program (NRMP), a non-profit that organizes the match between students and hospitals, released a statement saying that the “consequences of the [January 27] Executive Order are far-reaching for match students and the upheaval is extensive.”17 They expressed concern that foreign medical students with valid visas would be delayed or not admitted at borders.18 The same concern applies to newly matched residents who must apply for a visa or seek to renew a visa. Most of the three to five year long residency programs begin on July 1, and many U.S. medical institutions fear that the Executive Order will prevent foreign students from beginning their residencies on time.19 Similarly, Indiana University-Purdue University Indianapolis planned to welcome the first class of Iranian graduate students to their campus as part of a new engineering program, established in partnership with the University of Tehran, but they had to put the program on hold because the students could not secure visas.20
16 Kathleen Struck, ’Match Day’ For Foreign Medical Students Runs Into US Travel Ban, VOA News (Mar. 18, 2017), http://www.voanews.com/a/us-medical-residency-programs-trump-travelban/3771735.html. 17 Id. 18 Id. 19 Id. 20 Collin Binkley, Travel Ban Throws Research, Academic Exchange Into Turmoil, AP News (Jan. 31, 2017), http://bigstory.ap.org/article/43b52752391f45c8a416ec6f8928a02c/travel-banthrows-research-academic-exchange-turmoil.
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In addition to negatively impacting international students and scholars who visit universities for the entire academic year, the Executive Order also negatively impacts academic researchers who participate in academic exchanges that are crucial to fulfilling the research mission of American institutions of higher learning. The Executive Order prevents foreign scholars and students studying and teaching in the United States from participating in foreign research and academic exchanges, out of fear that they will be unable to re-enter the country. More than 43,000 academics and researchers, including over 31,000 US faculty members, 62 Nobel Laureates, 521 Members of the National Academies of Sciences, Engineering, and the Arts, and 142 winners of the Pulitzer Prize, MacArthur Fellowship, Fields Prize and other prestigious academic awards signed a petition making their view clear that the Executive Order limits “collaborations with researchers from these nations by restricting entry of these researchers to the U.S. and can potentially lead to the departure of many talented individuals who are current and future researchers and entrepreneurs in the U.S.”21
Many U.S. scholars fear that the gains that the United States has made with research in the Middle East will be undermined by the Executive Order.22 Research with scholars in the Middle East is wide-ranging. The National Institutes of Health reports that U.S. and Iranian researchers have teamed up to study cancer, heart disease, hepatitis, and opiate
21 Academics Against Immigration Executive Order, https://notoimmigrationban.com/ (last visited Mar. 26, 2017). 22 Binkley, supra note 20.
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addiction.23 An HIV researcher at Harvard Medical School reports that the Executive Order has placed her critical collaboration with Iranian counterparts into question, as well as the ability of an Iranian colleague to teach at Harvard Medical School next year.24 Students at Columbia Law School’s Human Rights Clinic have been working with researchers at a think tank in Yemen to study the health consequences of civil war. They planned to move their conference from New York to Canada because Yemeni researchers would not be able to attend.25 International scholars have also advocated the boycott of academic conferences held in the United States, in solidarity with those impacted by the restrictions. Shortly after the January Executive Order, 3,000 international scholars signed a pledge committing themselves to boycott academic conferences held in the United States during the pendency of the Administration ban.26 By March 6, the day that the new Executive Order was released, more than 6,600 international scholars had joined the call for a boycott.27 Nicholas Dirks, the Chancellor of the University of California-Berkeley, believes that the ban gives an advantage to countries that compete with the United States
23 Id. 24 Id. 25 Id. 26 Elizabeth Reddin, In Protest of Trump Entry Ban, Some Scholars are Boycotting U.S.-Based Conferences, Inside Higher Education (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban- some-scholars-areboycotting-us-based-conferences. 27 “In Solidarity with People Affected by the ‘Muslim Ban’: Call for an Academic Boycott of International Conferences Held in the US,” https://docs.google.com/forms/d/e/1FAIpQLSeNN_2HHREt1hdm_CgWpFHw8NDPGLCkOwB4lLRFtKFJqI25w/viewform (last visited Mar. 26, 2017).
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for scholars and “allowing them to replace [the United States] as the prime destination for the most talented students and researchers would cause irreparable damage and help them to achieve their goal of global leadership.”28
The Executive Order also has a negative economic impact on U.S. institutions of higher education, and by extension the United States. According to a report by the Brookings Institution, foreign students contributed $56.5 Billion in tuition and $39.1 Billion in living expenses from 2001-2012.29 A Study by NAFSA: Association of International Educators determined that international students contributed $32.8 Billion to the U.S. economy, and supported 400,000 jobs in the 2015-16 academic year.30 The report also assessed that every seven international students supported the creation of approximately three U.S. jobs.31 Iranian students, the largest contingent of the listed countries, contributed $386 Million to the U.S. economy during the 2015-16 academic year.32 The barring of international students and scholars from the listed Muslim-Majority
28 Reddin, supra note 26. 29 Neil G. Ruiz, The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations, Metropolitan Policy Program at Brookings Institution, 9 (August 2014), https://www.brookings.edu/wp-content/uploads/2014/08/foreign_students_final.pdf. 30 NAFSA: Association of International Educators, NAFSA International Student Economic Value Tool, NAFSA.org, http://www.nafsa.org/Policy_and_Advocacy/Policy_Resources/Policy_Trends_and_ Data/NAFSA_International_Student_Economic_Value_Tool (last visited March 26, 2017). 31 Id. 32 Institute of International Education, Open Doors Fact Sheet: Iran, Open Doors Data, (2016), http://www.iie.org/ Research-and-Publications/ Open-Doors/Data/Fact-Sheets-byCountry/2016#.WNV9kqK1tPY (last visited Mar. 26, 2017).
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countries, and the corollary decline in attendance from other international students and scholars, will deny much needed tuition to U.S. colleges and universities and much needed expenditures to the U.S. real estate, transportation, retail, dining, telecommunications, and health insurance sectors.
C. The Executive Order Adversely Impacts American Higher Education’s Crucial Role in Building Mutual Cross-Cultural Understanding Which Enhances Friendly Relations Between Nations.
The Executive Order also undermines American higher education’s crucial role in building mutual cross-cultural understanding between peoples and nations. When governments have hostile relations, educational exchange and collaboration builds bridges among those countries’ citizens and can become the basis for future diplomatic engagement.33 Among the six countries included in the Executive Order, the United States has hostile relations with the Governments of Syria, Iran and Sudan.34 The governments that the United States recognizes in Libya, Yemen, and Somalia lack full control over those countries, and the U.S. has strained relations with the competing regimes that seek to
33 Sara Custer, US State Department Endorses ‘Education Diplomacy’, Pie News (July 10, 2015), https://thepienews.com/news/us-state-department-endorses-education-diplomacy. 34 Hostile relations between U.S. and Syria, Iran, and Sudan have lasted for decades. See e.g., George Baghadid, U.S.-Syria Relations: Rollercoaster Diplomacy, CBS News (May 24, 2010) http://www.cbsnews.com/news/us-syria-relations-rollercoaster-diplomacy (reporting bilateral hostilities with Syria since 2004); BBC, US-Iran relations: A brief guide (Nov. 24, 2014) http://www.bbc.com/news/world-middle-east-24316661 (noting the tensions between the U.S. and Iran since the Iranian Revolution and U.S. Embassy-Tehran hostage crisis of 1979); Jeffrey Gettleman, United States to Lift Sudan Sanctions, N.Y. Times (Jan 13, 2017) https://www.nytimes.com/2017/01/13/world/africa/sudan-sanctions.html (noting nearly twenty years of hostile relations between the U.S. and Sudan).
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overthrow the legally recognized governments.35 It is precisely because of the U.S. government’s tensions with the Iranian, Syrian
and Sudanese governments, and the U.S. government’s opposition to hostile regimes that control wide swaths of Libya, Yemen, and Somalia, that banning educational exchange with students and scholars from these countries is particularly short-sighted. U.S. engagement with these nations’ scholars and students can help to build bridges that will lead to improved state to state and citizen to citizen interaction in the future. America has educated world leaders from nations identified in the travel ban. Shukri Ghanem, who served as the Prime Minister to Libya from 2003 to 2006, earned his PhD from the Fletcher School of Law and Diplomacy at Tufts University in Massachusetts.36 Abdul-Aziz AbdulGhani, the former Prime Minister of Yemen, studied political science at Colorado College.37
35 Relations have been strained between the U.S. and Libya, Yemen, and Somalia for many years. See, e.g., US-Libya Relations Contentious During Gadhafi's Leadership, VOA News (Oct. 19, 2011) http://www.voanews.com/a/us-libya-relations-were-contentious-during-gadhafisleadership-132260478/146937.html (citing a “rocky” relationship between the U.S. and Libya for four decades); Jackie Northam, As Yemen's War Worsens, Questions Grow About The U.S. Role, NPR (Oct. 11, 2016) http://www.npr.org/sections/parallels/2016/10/11/497563923/u-sreconsiders-support-of-saudi-led-coalition-in-yemen-conflict (describing U.S.-Yemen relations as “increasingly embroiled”); Conor Gaffey, A Short History of Somali-U.S. Relations, Newsweek (Aug. 10, 2016) http://www.newsweek.com/short-history-somali-us-relations-489125 (noting decades of U.S. military intervention and struggle in Somalia). 36U.S. Dep’t of State, Foreign Students Yesterday, World Leaders Today, https://www.csustan.edu/sites/default/files/OIE/documents/yedterdaysinternationalstudents.pdf (last visited Mar. 24, 2017). 37 Id.
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American institutions have helped sculpt the international landscape by educating world leaders and Nobel laureates. Kofi Annan, renowned U.N. Secretary General, completed his undergraduate economics work at Macalester College in St. Paul, Minnesota.38 Mr. Annan was a joint recipient of the 2001 Nobel Peace Prize, for his work “for a more peaceful world.”39 Juan Manuel Santos, currently serving as the President of Colombia, earned his BA from University of Kansas and MPA from Harvard.40 Mr. Santos was the sole recipient of the 2016 Nobel Peace Prize, for his “resolute efforts to bring [Colombia’s] more than 50-year-long-civil war to an end.”41
Further, an American education has had a profound impact on prominent world leaders from Muslim-majority countries. Benazir Bhutto, who served as Prime Minister to Pakistan from 1993 to 1996, was the first woman to head a Muslim majority nation.42 She earned her BA in comparative government at Harvard University, later describing the experience as “the very basis for [her] belief in democracy.”43 Former President of
38 United Nations, Former Secretary-General: Kofi Annan, UN.org, https://www.un.org/sg/en/formersg/annan.shtml (last visited Mar. 24, 2017). 39 Nobel Media AB, The Nobel Peace Prize 2001, Nobelprize.org, https://www.nobelprize.org/nobel_prizes/peace/laureates/2001 (last visited Mar. 24, 2017). 40 Monica Lungu, Where Have the World Leaders Pursued Their Higher Education, MastersPortal.eu (Apr. 27, 2016), http://www.mastersportal.eu/articles/1724/where-have-theworld-leaders-pursued-their-higher-education.html. 41 Nobel Media AB, The Nobel Peace Prize 2016, Nobelprize.org, http://www.nobelprize.org/nobel_prizes/peace/laureates/2016 (last visited Mar. 24, 2017). 42 New York Times, Not Forgotten: Obituaries, N.Y. Times (June 21, 2016), https://www.nytimes.com/interactive/projects/cp/obituaries/archives/benazir-bhutto. 43 Harvard Crimson, Benazir Bhutto ’73 Assassinated, TheCrimson.com (Dec. 27, 2007), http://www.thecrimson.com/article/2007/12/27/benazir-bhutto-73-assassinated-pakistani-
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Indonesia Susilo Bambang Yudhoyono earned his master’s degree at Webster University.44
He served as Chairman of the Democratic Party and later as head of the Global Green
Growth Institute, an international organization promoting economic growth and environmental sustainability.45 Former President of Bangladesh Iajuddin Ahmed earned both his masters and PhD at the University of Wisconsin.46 Numerous high-ranking Afghani officials have sought an American education.47
Further, academic institutions play a role in supporting academic freedom and
protecting scholars who are agents of change targeted by corrupt regimes in their home
countries. For example, Scholars At Risk (“SAR”) is an international network of higher
education institutions dedicated to protecting scholars and promoting academic freedom
around the world. SAR partners with higher education institutions to find temporary
opposition. 44 U.S. Dep’t of State, Foreign Students Yesterday, supra note 36. 45 Global Green Growth, Press Release: President of Indonesia Yudhoyono announced as next GGGI Assembly President and Council Chair at GGGI Leaders’ Gathering, GGGI.org (Sept. 23, 2014), http://gggi.org/president-of-indonesia-yudhoyono-announced-as-next-gggi-assemblypresident-and-council-chair-at-gggi-leaders-gathering. 46 Bangladesh Ministry of Foreign Affairs, President’s Life Sketch Prof. Dr. Iajuddin Ahmed, WebArchive.org, https://web.archive.org/web/20070810115053/http://www.mofa.gov.bd/president.htm (last visited Mar. 24, 2017). 47 E.g., Vice-President Hedayat Amin-Arsala, Southern Illinois University; Minister of Higher Education Amir Shah Hasanyar, Colorado State University; Minister of Transport Enayatullah Qasemi, Baltimore University; Minister of Health Amin Fatemi, Boston University; Ambassador to the United States H. E. Ishaq Shahryar, University of California at Santa Barbara; former Prime Minister Abdul Zahir, Columbia University. U.S. Dep’t of State, Foreign Students Yesterday, supra note 36.
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assignments for scholars facing grave threats so that their ideas are not lost, and they can
keep working until conditions improve in their home countries.48 Since 2000, SAR has
provided sanctuary to more than 700 scholars.49 SAR has supported scholars from
throughout the Middle East and Africa, including countries covered on the travel ban – in
recent years, Iranian scholars constituted 25% of scholars receiving support from SARS
and Syrian scholars comprised 21% of the scholars receiving support.50
Higher Education Institutions’ critical role in healing violent conflict was
summarized by SAR Executive Director Robert Quinn as he described a conference of
MENA universities in Amman, Jordan:
this was a room full of skilled, dedicated people from all around the Arab world, motivated by a shared, positive vision for the region; a vision where young people interact with counterparts in other Arab countries and around the world, and build a brighter future based on knowledge. What made this all the more inspiring is that the conference was going on precisely on the days when Islamic State militants were advancing toward the Iraqi city of Mosel, killing indiscriminately along the way… I would spend hours in the conference with heroic professionals working for a totally different, positive vision, practically invisible…accelerating movement in this direction is essential to humanity’s well-being, and perhaps even to our survival, and the higher education community has a vital role to play, I would say a responsibility.51
48 Scholars at Risk Network, About, Scholarsatrisk.org, https://www.scholarsatrisk.org/about (last visited Mar. 27, 2017).
49 Scholars at Risk Network, Protection, Scholarsatrisk.org, https://www.scholarsatrisk.org/protection (last visited Mar. 27, 2017).
50 Scholars at Risk Network, Getting Involved Handbook, 2 (Apr. 15, 2016), https://www.scholarsatrisk.org/wp-content/uploads/2016/05/Getting_Involved.pdf; see also Scholars at Risk Network, A Future For Syria’s Scholars, Scholarsatrisk.org, https://www.scholarsatrisk.org/a-future-for-syrias-scholars (last visited Mar. 27, 2017).
51 Remarks by Robert Quinn, SAR Executive Director, “We Leave Our Guns At the Door: The Essential Role of Higher Education” (Mar. 25, 2015), https://forumea.org/wpcontent/uploads/2014/09/RQuinn-Forum-on-Education-Abroad-26MAR2015.pdf.
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The Executive Order would bar U.S. academic institutions from fulfilling this critical role and from providing crucial support to threatened scholars and students who can become positive change agents in their home countries.
The United States has previously witnessed the impact of a restricted visa policy on institutions of higher education. NAFSA reports that after September 11th, the U.S. experienced successive declines in international student attendance in 2003-2005, following several years of 5-6% international student increases prior to September 11th.52 In the NAFSA’s assessment, the visa restrictions sent a message to international students that they were not wanted.53 In this instance, no recent terrorist attack or threat has occurred which warrants this overly restrictive banning of international students and scholars from the designated Muslim-majority countries.
Finally, although the Executive Order includes a waiver provision, the waiver provision is discretionary and provides no assurance that individuals from listed countries will be able to enter the United States to study, teach, or research at a U.S. institutions of higher learning. The relevant waiver provision only permits the entry, on a case-by-case basis and at the discretion of consular officers and U.S. Customs and Border Protection officials, of individuals who have previously been admitted to the United States for an
52NAFSA: Association of International Educators, Restoring U.S. Competitiveness for International Students and Scholars (June 2006), http://www.nafsa.org/uploadedfiles/nafsa_home/resource_library_Assets/public_policy/ restoring_u.s.pdf. 53 Id.
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extended period of work, study, or other long term activity and they seek to resume that activity.54 The provision appears only to apply to individuals who were located outside of the United States and had an existing visa at the time that the March 6 Executive Order took effect. For such individuals, the discretionary nature of the waiver provision does not guarantee that they will be able to re-enter the United States to resume their academic study, research or teaching. Further, the waiver provision is unavailable to students and academics who did not have a visa at the time that the Executive Order took effect, effectively barring any new students and scholars hoping to come the United States after March 16, 2017, and during the pendency of the Executive Order. II. The Executive Order Inflicts Irreparable Harm by Legitimizing Anti-Muslim
Suspicion and Antagonism That Has Led to Increased Hate Incidents and Violence Against Muslim-American and Foreign Muslim Faculty, Staff and Students on University and College Campuses Across the Country. There has been a rise in hate incidents against Muslim Americans in the United States; particularly on college and university campuses. Unfortunately, the Executive Order reverses the basic principle that discrimination against Muslims is unlawful and an unacceptable cultural norm. The impact of the Executive Order’s stigmatizing and legitimating effect on discriminatory societal norms is apparent nationwide and specifically on U.S. university and college campuses with the increase in discrimination and harassment of Muslim students, faculty, and staff.
54 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 § 3(c) (Mar. 6, 2017), https://www.whitehouse.gov/the-press-office/2017/03/06/ executive-order-protecting-nationforeign-terrorist-entry-united-states.
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The travel ban continues a national narrative begun during the Trump presidential campaign that validates discriminatory behavior. Legal norms reinforce cultural norms and community practices. Cultural norms that are legitimized through the law entrench ideas and give community members the “the sense of being natural and part of the way things are or should be.”55 In the United States, progress towards equality has begun within the courts to dismantle deep discriminatory cultural norms and community practices codified in the law.56 In anti-discrimination jurisprudence, courts have recognized the legitimating power the law has to reinforce discriminatory norms. Thus, one of the steps in combatting deeply held discriminatory societal norms starts with invalidating discriminatory de jure laws.
The Supreme Court case Korematsu is an example of an overly broad discriminatory Executive Action, justified on national security grounds, that marks a shameful time in American history. In 1942, the president issued Executive Order No. 9066 pursuant to his national security authority while at war with Japan.57 This order authorized the president
55 Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18.1 Ind. J. Global Legal Stud. 87, 90 (2011), http://scholarship.law.cornell.edu/facpub/187. 56 See generally, State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (allowing instate tuition for African-American students); Sipuel v. Bd. of Regents of Univ. of Okl., 332 U.S. 631 (1948) (allowing African Americans to enroll in law school); Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) (“Brown I”), sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (“Brown II”) (eliminating discrimination in schools based on race); Loving v. Virginia, 388 U.S. 1 (1967) (eliminating discrimination in marriage based on race); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (recognizing discrimination in workplace based on same-sex harassment); Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (extending marital rights to same-sex couples). 57 National Archives and Records Administration, 7 Fed. Reg. 1407 (Feb. 25, 1942).
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to take “every possible protection against espionage and against sabotage to national-
defense material, national-defense premises, and national-defense utilities.” Korematsu v.
United States, 323 U.S. 214, 217 (1944).
Pursuant to this order, Mr. Korematsu was prosecuted for his failure to follow
Exclusion Order No. 34 “which directed that after May 9, 1942, all persons of Japanese
ancestry should be excluded [from an area in California].” Id. at 215–16. The Supreme
Court upheld the executive actions as part of the President’s authority as Commander In
Chief to protect the national security of the country. Id.
In Justice Murphy’s dissenting opinion, he insightfully mentions:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.
Id. at 233. Justice Murphy noted that that group characteristics were not correlated or
related to “the dangers of invasion, sabotage and espionage.” Id. at 239–40. Rather, the
Executive Order and Exclusion Order:
reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.
Id. at 239–40. Korematsu is instructive to this case in that it is direct evidence of when
deep discriminatory cultural norms and community practices are unjustifiably codified into
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the law based upon misinformation, half-truths and insinuations directed at individuals from Muslim majority countries.
The travel ban continues a narrative that began during the Presidential campaign that validates hate speech and violence against Muslim Americans and International Muslim students in the United States based on misinformation, half-truths, and insinuations. During Trump’s Presidential campaign, he made several statements indicating that he intended to implement a Muslim travel ban:
- Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. Trump declared in December 2015.58
- Former Mayor Rudy Giuliani stated “So when (Trump) first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”59
The Executive Order implements Trump’s campaign statements and demonstrates the promulgation of misinformation, half-truths and insinuations about Muslims. These statements adversely impact the diversity and learning environment on university and college campuses and are used to legitimize hate incidents against Muslim Americans.
Researchers at California State University, San Bernardino documented the rise in
58 Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration (last visited Mar. 27, 2017). 59 Amy Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’, Washington Post, (Jan. 29 2017), https://www.washingtonpost.com/news/thefix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-todo-it-legally/?utm_term=.9541ebd63d8b.
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hate crimes across the country, specifically examining hate crimes against Muslims.60 “The Federal Bureau of Investigations defines a hate crime as a ‘criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity.’”61
California State University researchers found that the surge in hate crimes against Muslims in the U.S. to be manifold including recent terrorist attacks, divisive political rhetoric, and the political climate which “has taken an extremist ideology into the mainstream of our political machine.” 62 Since the election of President Trump, “in the ten days following the election, there were almost 900 reports of harassment and intimidation from across the nation. Many harassers invoked Trump’s name during assaults, making it clear that the outbreak of hate stemmed in large part from his electoral success.”63
The number of hate groups in the United States rose to 917 in 2016 from 892 in 2015. The most dramatic increase was in the number of anti-Muslim hate groups, which jumped to 101 in 2016 from 34 in 2015.64 “Hate crimes, including attacks against American Jews and Muslims, spiked in several key U.S. cities in 2016, underscoring an upsurge that
60 Masood Farivar, Hate Crimes in US Rising, Particularly in Big Cities, VOA News (Mar. 09, 2017), http://www.voanews.com/a/us-hate-crimes-rising-particularly-in-big-cities/3756604.html. 61 Id. (citing FBI, 2015 Hate Crime Statistics, Uniform Crime Reporting, https://ucr.fbi.gov/hatecrime/2015). 62 Farivar, supra note 60. 63 Southern Poverty Law Center Report, Ten Days After Harassment and Intimidation in the Aftermath of the Election, 4 (Nov. 2016), https://www.splcenter.org/sites/default/files/com_hate_incidents_report_final.pdf. 64 Farivar, supra note 60.
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started during the presidential campaign and has continued unabated, according to data collected by researchers at California State University, San Bernardino.” 65
University and college campuses across the nation have been a common venue for hate incidents.66 In a study by the Southern Poverty Law Center,67 the center found that the most common venue for hate incidents was schools—both secondary and higher education institutions.68 The report found 140 incidents out of 843 of targeted hate incidents since Trump was elected occurred in schools. Further, the report specifically focuses in on the type of discrimination noting that 49 or 6% of incidents nationwide were anti-Muslim hate incidents and 293 or 32% nationwide were anti-immigrant sentiment hate incidents.69 The report specifically cites that:
Muslim women wearing hijabs have been particularly vulnerable to threats and assault. Women reported being grabbed by their hijab, including a San Jose State University student who was choked and fell when a man pulled her head scarf from behind in a parking garage. 70 A narrative of hate against any minority serves to only embolden individuals whose false perceptions are based on discriminatory misinformation. The promulgation of this
65 Id. 66 Southern Poverty Law Center Report, supra note 63, at 13; Caitlin Dickerson & Stephanie Saul, Campuses Confront Hostile Acts Against Minorities After Donald Trump’s Election, N.Y. Times, Nov. 10, 2016. 67 The Southern Poverty Law Center acknowledges that some incidents of hate incidents are falsely reported. Southern Poverty Law Center Report, supra note 63. 68 Id. at 5. 69 Id. at 7, 10. 70 Id. at 10.
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narrative results in the rise of fear. Other minority groups not specifically targeted have also been subjected to hate incidents. For example, due to a lack of cultural awareness, those espousing hate often mistakenly target non-Muslim minorities (i.e. violence against Sikhs, ostensibly because of turbans). On March 15, 2017, an “Indian-American IT engineer employed by a US company was fatally shot and his Indian colleague wounded by a white man who thought they were Middle Easterners and who was heard telling them to ‘get out of my country’ at the time of the shooting.”71 Regrettably, these discriminatory incidents against Muslim Americans on campuses are on the rise in the wake of nationwide university efforts to promote diversity and acceptance of cultural differences.72
The rise in hate crimes has sparked nationwide campus protests in solidarity with Muslim students and widespread support within campus communities to assuage fears of uncertainty.73 Muslim students are afraid that the Executive Order and Trump’s rhetoric against Muslims has empowered individuals to act on their discriminatory beliefs.74 The protests supporting Muslims demonstrate that campuses communities recognize how
71 Raj Haldar, Indian Americans won’t be safe as long as the White House is inciting fear, Washington Post (Mar. 14, 2017), https://www.washingtonpost.com/posteverything/wp/2017/03/14/indian-americans-wont-besafe-as-long-as-the-white-house-is-inciting-fear/?utm_term=.36316116187e. 72 Dickerson, supra note 66 (stating “a year after students at campuses nationwide pushed for greater sensitivity toward cultural differences…just last year, a wave of anti-racism protests broke out on campuses across the country. In response, many universities cracked down on students’ insensitivity, and some fired school administrators. But this week, students began to worry that all their work was fruitless with Mr. Trump’s election success. To many, Mr. Trump is the champion of anti-political correctness and embodies the opposition to “safe spaces”). 73 Id. 74 Id.
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disturbing and destructive anti-Muslim rhetoric and hate incidents are to the learning
environment which thrives on diversity.
Since the President’s Executive Order, college and university campuses across the
country have been protesting and issuing statements in opposition to the discriminatory
travel in solidarity with Muslim members of the campus communities and the diversity that
Muslims bring to academia.75 The students’ chants demonstrate the rallying behind
immigrant communities in statements ranging from “Student solidarity” to “No hate, no
fear! Refugees are welcome here!”76 In addition, the administrators at several universities
and colleges have adopted sanctuary policies to protect immigrant students from
immigration authorities.77 The extensive actions taken at institutions of higher education
demonstrate the value placed on maintaining diversity and acknowledging the importance
75 Samantha Grasso, NYC students walk out in protest of Trump, DeVos, Muslim ban, The Daily Dot, (Feb. 7, 2017), https://www.dailydot.com/irl/nyc-student-walkout-protest-trump-muslimban (With painted signs and popular chants, high school and college students rallied at Foley Square in lower Manhattan around noon, denouncing Trump’s decisions against banning immigrants from seven Muslim-majority countries.); see e.g., Hannah Natanson & Claire E. Parker, Faust, Administrators Criticize Immigration Order, The Harvard Crimson, (Jan. 30, 2017), https://www.thecrimson.com/article/2017/1/30/faust-immigration-email (Harvard Students); Alexandra Kurland, GU Students Protest Trump’s Muslim Ban (Feb. 26, 2017) http://guprogressive.com/gu-students-protest-trumps-muslim-ban (George Washington University students); Joel Brown, Hundreds Protest Trump’s Immigration Ban at Marsh Plaza Rally (Jan. 31, 2017) https://www.bu.edu/today/2017/rally-against-trump-muslim-immigrationban (Boston University students); Margaux MacColl, Students host ‘walkout’ to protest Muslim Ban (Feb. 1, 2017), http://www.northbynorthwestern.com/story/students-host-walkout-toprotest-muslim-ban (Northwestern University Students). 76 Brown, supra note 75. 77 Julia Preston, Campuses Wary of Offering Sanctuary to Undocumented Students, N.Y. Times (Jan. 26, 2017), https://www.nytimes.com/2017/01/26/education/edlife/sanctuary-forundocumentedstudents.html?utm_source=AOL&utm_medium=readMore&utm_campaign=partner.
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of diversity in contributing to an innovative learning environment for scholars, faculty,

staff and students on campuses.

CONCLUSION

For all of the foregoing reasons, the Executive Order irreparably harms Muslim and

Muslim-American students and scholars and U.S. institutions of higher education and we

encourage the Court to grant Plaintiff’s Request for a preliminary injunction.

Respectfully submitted,

Dated: March 28, 2017

/s/ Darin Johnson /s/ Karla M. McKanders Civil Rights Clinic Howard University School of Law 2900 Van Ness St., N.W. Washington, DC 20008 (202) 806 – 8065 Amicus Curiae in Support of the Plaintiff 78

78 We are grateful to Jennifer Breaux, Chelsea Daniels, Ashley Beard and the Members of the Howard University School of Law Muslim Law Student’s Association for their contributions to this submission. The views expressed by Howard University School of Law’s Civil Rights Clinic are not necessarily those of Howard University or the School of Law.
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APPENDIX A – STUDENT IMPACT STATEMENTS CD – Howard University School of Law Student
The impact of the travel ban on my educational experience has been profound. There is a certain level of trust a person must have in their government. I, as a Muslim American student, am denied this trust because of the ban. Being a first generation American on my father’s side of the family, the value of that birthright has never been lost on me. While some of my family members have naturalized, there was a sense among my first generation cousins and me that our American-ness is absolute. The travel ban has diminished this belief. This shift has had a devastating impact on my educational experience and makes me feel as if my efforts in my legal education seem futile.
In a little more than a year, Inshallah, I will take an oath to protect the U.S. Constitution that the President of the United States is trying to keep from protecting me. In my pursuit of life and liberty, I cannot fathom the idea of a barrier to being able to see loved ones who live abroad and are from Muslim majority countries. My grandmother is very elderly and recently widowed, she also lives in Tehran. The ban does not allow her to visit me. The ban prohibits from applying to immigrate to the United States to be with her children and grandchildren. Time is not something in which families with elderly relatives have the luxury. Also, my cousins, who have been Dutch citizens since childhood are prohibited from traveling to the U.S. because of where they were born. Family unity is destroyed under the ban.
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It is more heartbreaking that I cannot easily visit Iran. As the daughter of an Iranian father, I cannot enter Iran without an Iranian passport, as I am considered an Iranian citizen by virtue of my paternal lineage. In acquiring an Iranian passport, I would place myself into limbo and jeopardy to not be able to re-enter the United States. Or be subject to harsh questioning to come back to my home country. Under these circumstances, I cannot exercise my right to obtain dual citizenship. In this context, obtaining dual citizenship equals discrimination when coming back home after travel abroad. It is sickening.
As a student, I must reconsider pursing opportunities to study abroad and work. The ramifications on my career are many.
This ban is not simply about religion; this is an amalgamation of how the Trump administration feels about people who represent the ethnic idea of a religion, and the political assumptions Trump wishes to place on certain countries. Every day is a struggle to emerge from the despair of this forced isolation from my own relatives, and concentrate on my studies. I have no doubt students were similarly affected when the USSR decided to build the Berlin wall.
As far as the representation of Muslim students being impacted at my school, this is a more complex question to address, because I have not yet seen the immediate impact of that in the presence of Muslims in the student body alone. However, the general message being catapulted into every single non-Muslim person who is not connected to the seven banned countries is being confronted with images that are not indicative of the people in these countries. Since Trump’s election, my significant other and I have been confronted both verbally and physically because of the immutable racial uniform we wear. The
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message delivered to the community both on campus and off, is that there are six threatening countries who are members of a threatening religion.
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FS – Howard University School of Law Student The last year of law school is difficult enough. For me, I had to organize my wedding
on top of that. In this equation, my identity as a Muslim student has become central to my experience. Trump’s travel ban put any formal wedding plans on hold because I could not book food, venues and tickets if my closest family and friends could not come. Some of my family are ethnically Sudanese, while my likely best man was born in Syria. In the middle of the semester, my wife and I quickly gathered together some local friends and family within the United States and held a civil marriage. Throughout these plans, I kept an eye on the news: like me, my family are Canadian Muslims not from one of the countries listed. But we had heard of Moroccan-Canadians being denied entry, so we were all scared. Remarkably, we had some solace in the fact that one of our family member visiting from Canada is a white non-Muslim—which we felt increased our family’s chances of being allowed into the US.
Today, my wife and I cannot visit those families for fear that if I leave the US, I will not be able to get back in to finish my education. The recent spike in attacks against Muslims and candidate Trump’s anti-Muslim rhetoric leaves no doubt in my mind that this is a Muslim Ban and that I will be harassed if I leave and try to reenter the United States. My Sudanese family member, who is himself a medical fellow in specialist training in Ohio, is not leaving the United States during holidays for fear of not being allowed back in.
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Finally, as a Muslim student at Howard Law School, I would enjoy having other Muslims at school for a richer, more personal educational experience. I asked the administration to allow me to share my experience with other students from Muslim majority for student recruitment. Now, I cannot do that because, in all honesty, I do not want them to live in the United States with the fear of not being able to travel. A smaller number of Muslims means that I do not have the peers that can help me bring the social justice ideas of Islam into the fight for civil rights in the US. I cannot share my experience and beliefs with my non-Muslim classmates because the Trump administration has demonized Islam. As a law student and eventually as a lawyer, I can help search for ideas to reduce radicalization in Islamic and in Christian communities, something that can be useful to the US. But now I feel that I am guilty without doing anything wrong. This makes me sad.
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ZK – Howard University School of Law Student: A decrease in Muslim student representation would devastate my education and my
experiences. Since the horrendous attacks on 9/11, I have struggled with my self-identity in America as a Muslim Indian-American. However, I woke up to the reality that if I do not live unapologetically Muslim in America then neither I nor will any of my fellow Muslims be able to leave peacefully in the U.S. If there is a decrease in the Muslim student representation the entirety of the Howard University student body would be adversely affected. If there are no Muslims to talk and dispel the lies presented in pop-culture and media conglomerates, than the only available information would be false information spoken as truth. If you take the lies as truths than this would invariably lead to prejudicial and [my greatest fear] almost Holocaust-Genocidal treatments of anyone claiming the Islamic faith. In this posited scenario I would have to either denounce my faith or live a life of secrecy that would lead me to self-hatred and a path of destruction. A representation of Muslim students personally helps me feel loved, accepted, and united with all members of the Howard University student body.
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SR – Howard University School of Law Student: As an Iranian-American who was born in the United States, the travel ban does not
impact me personally, but it does impact a great deal of people that I know and has the potential to disrupt my educational opportunities. I am concerned about the unpredictability of the whole situation. Part of my educational experience definitely comes from traveling. I learn a lot and see a lot when I visit other countries. Being afraid to travel because of the travel ban prevents me from being able to fulfill this area of my education and experience what the world has to offer.
The travel ban also impacts the diversity that is a cornerstone of my institution and a modern society. America is revered for being a melting pot of different cultures and that is what makes us so special. As an Iranian-American I love being one of the many ingredients in the melting pot—I like teaching others about my culture and answering their curious questions because they are genuine people interested in learning and becoming cultured. I am one of these people as well, I love learning about people and their cultures and as an American I like many other am uneducated on certain Middle eastern cultures and the Islamic religion. Decreasing the Muslim Student representation would impact me because the best ways of learning about cultures is through the stories and experiences of the people and I as well as other Americans would be deprived of the cultural education that comes from it.
At the same time, I am concerned for the American people, as many Americans may not be exposed to different cultures. The travel ban only further prevents Americans from being exposed to an educational experience that could diminish their fear and ignorance
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about an entire culture and religion. As an Iranian I would not want to live in a place where the people are afraid of me
and my people and others that come from the same area and practice the same religion. Fear of a people turns into harassment of the people and that treatment makes them not want to immerse themselves in the culture of where they live. This would have a negative effect on my educational experience because there are so many places I would avoid going, and so many things I would avoid doing--everything is an educational experience and I would miss out on so much because I would be afraid of being harassed by ignorant people who think my people are evil because they never got to learn about our culture. And, as someone who was born an American and against the current state of Iran, I do not know where I would go.
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LA – Howard University School of Law Student: The travel ban has impacted my ability to be focused and mentally present in my
classes. Being a first generation Iraqi-American Muslim student, my family has been directly impacted by the travel ban. Today, much of my family is scattered overseas in various Middle Eastern and European countries. Beginning in the 1970s, my relatives began leaving Arab countries due to violence, conflict, and experiences of persecution. My parents found safety, stability, liberty, and opportunities in America. Unfortunately, nearly forty years after coming to this country, the recent executive orders pose a direct threat to the same safety, stability, liberty, and opportunities that greeted my family so many years ago.
The Executive Orders effectively ban all persons from the named Muslim-majority countries, not based on any specific threat(s), but rather based solely upon national origin. Further, there appears to be no justifiable foundation for the inclusion of the countries named in the ban and the exclusion of certain other Muslim-majority countries. The effect of the Trump administration’s cherry picking of Muslim countries has led to fear, uncertainty, and instability for all Arabs.
There are so many questions and fears raised by the Executive Orders: What will be next? What factors will trigger the inclusion or exclusion of a country in the ban? Will it apply to American citizens and visa holders whose country of origin is one of these Muslim countries? Are these individuals able to travel? Can they re-enter the U.S.? Will they be detained? If today they are free to travel, what is the likelihood of that changing over night while they are out of the country?
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I know these questions very well, because my father, an American citizen who happened to be born in Iraq, had plans to visit his elderly mother whose health is failing and lives in Iraq. These are the questions I contemplate. These are the questions my family faces.
This travel ban is an insult to all those who fall under its purview - whether they remain in the countries named in the ban or are fortunate enough to already have American citizenship. It presumes that all individuals are a threat to the safety of this country based entirely on national origin and religion. It unjustly and unfairly paints me, and all those like me, as terror threats without any basis in reality. It enhances the ability of others who buy into this rhetoric to discriminate against, discredit, and belittle Arab Americans. Thus, every good quality or contribution to society made by an individual who falls under this ban is effectively undermined by the presumption the ban makes about the individual.
If there are any doubts as to whether fear, hostility, and hate against Muslims exist, make no mistake that the experiences of Muslims in this country reflect those sentiments from others. Immediate family members have shared stories of co-workers' attitudes suddenly changing following the travel ban and long glares on the subway. More often the comments are played off as ‘jokes’ and I have been on the receiving end of them more times than I can count: "Better hope Trump doesn't deport you next!" Sadly, such comments are not “jokes,’ they could very easily become reality for many.
I am the daughter of an Iraqi-American immigrant. I am an Iraqi-American. I am a law student. I am not a terror threat. My family members are not terrorists. This travel ban must be stopped.
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As a student, a decrease in Muslim student representation would be detrimental to my educational experience. Muslim students add diversity to the classroom, sharing their views and ideas which are often informed by their unique experiences. In the context of the study of law, Muslim law students are particularly needed for purposes such as the one at present - to ensure that the government is held to the limitations imposed by the Constitution so that the rights of individuals are protected from the exact infringement and abuses imposed by the travel ban. Who better to challenge Constitutional violations than those directly affected by them? Who can we count on to care? To deny educational opportunities to otherwise qualified students, based on religion or national origin, is contrary to the American way. The effect of excluding Muslim students from the educational sphere serves only to limit their access to information, their knowledge, and ultimately their power to effect change. In this way, the government may continue to trample on the rights of these individuals who will become voiceless and ineffectual.
11

Case 1:17-cv-00255-TSC Document 61 Filed 03/31/17 Page 47 of 49
Appendix B - Signatories* 1. Deborah Archer, Professor, New York Law School 2. Angela M. Banks, Professor of Law, William & Mary, Marshall-Wythe School of
Law 3. Jesse Bawa, Assistant Prof. of Lawyering Skills, Howard Law 4. Dorothea Beane, Professor of Law, Stetson College of Law 5. Steven Bender, Professor of Law, Seattle University School of Law 6. Barbara Bernier, Professor of Law, Independent Scholar 7. Khaled Beydoun, Associate Professor, University of Detroit Mercy School of Law 8. Kristina Campbell, Professor of Law, UDC David A. Clarke School of Law 9. César Cuauhtémoc García Hernández, Assistant Professor of Law, University of
Denver 10. Kim D. Chanbonpin, Professor of Law, The John Marshall Law School 11. Kami M. Chavis, Professor, Wake Forest, School of Law 12. Carol Chomsky, Professor of Law, University of Minnesota 13. Charlton Copeland, Professor of Law, University of Miami School of Law 14. Marisa Cianciarulo, Professor of Law, Chapman University 15. Benjamin Davis, Professor of Law, University of Toledo College of Law 16. Richard Delgado, John J. Sparkman Chair of Law, University of Alabama School
of Law 17. Meera E Deo, Associate Professor of Law, Thomas Jefferson School of Law 18. Jeremi N. Duru, Professor of Law, American University 19. Maurice R. Dyson, Professor of Law, Thomas Jefferson School of Law
* The above individuals are signing in their individual capacities. Institutions are listed for identification purposes only.
12

Case 1:17-cv-00255-TSC Document 61 Filed 03/31/17 Page 48 of 49
20. Nancy Ehrenreich, Professor of Law, University of Denver Sturm College of Law 21. Anthony Paul Farley, James Campbell Matthews Distinguished Professor of
Jurisprudence, Albany Law School 22. Susan Gzesh, Senior Lecturer & Exec. Director, Pozen Center for Human Rights,
University of Chicago 23. Justin Hansford, Visiting Professor, Georgetown Law 24. Ayesha Bell Hardaway, Assistant Professor of Law, Case Western Reserve
University School of Law 25. Lucille Jewel, Associate Professor of Law, University of Tennessee College of
Law 26. Kit Johnson, Associate Professor, University of North Dakota School of Law 27. José R. Juárez, Jr., Professor of Law, University of Denver Sturm College of Law 28. Susan L. Kay, Clinical Professor, Vanderbilt Law School 29. Margaret B. Kwoka, Associate Professor, University of Denver Sturm College of
Law 30. Prerna Lal, Staff Attorney and Clinical Supervisor, East Bay Community Law
Center 31. Beth Lyon, Clinical Professor of Law Director and Farmworker Legal Assistance
Clinic, Cornell Law School 32. Maya Manian, Professor, University of San Francisco School of Law 33. Maya Manian, Professor, University of San Francisco School of Law 34. Frank McClellan, Professor of Law Emeritus, James E. Beasley School of Law,
Temple University 35. Kris McDaniel-Miccio, Professor of Law, University of Denver Sturm College of
Law 36. Mariela Olivares, Associate Professor, Howard University School of Law 37. Maria M Pabon, Professor of Law, Loyola University New Orleans College of
Law
13

Case 1:17-cv-00255-TSC Document 61 Filed 03/31/17 Page 49 of 49
38. Cheryl Page, Professor, Duncan School of Law 39. Joy Radice, Associate Professor, University of Tennessee 40. Vernellia Randall, Professor Emerita of Law, The University of Dayton School of
Law 41. Paula R. Rhodes, Associate Professor, University of Denver Sturm College of Law 42. Ediberto Roman, Professor of Law & Director of Immigration and Citizenship
Initiatives, Florida International University School of Law 43. Tom Romero, II, Associate Professor of Law & Assistant Provost of IE Research
& Curricular Initiatives, University of Denver Sturm College of Law 44. Josefine Ross, Professor, Howard University School of Law 45. Valerie Schneider, Associate Professor, Howard University School of Law 46. Catherine Smith, Associate Dean of Institutional Diversity and Inclusiveness,
Professor, University of Denver, Sturm College of Law 47. Jean Stefancic, Professor, University of Alabama School of Law 48. Enid Trucios-Haynes, Professor, University of Louisville, Louis D. Brandeis
School of Law 49. Chris Tyson, Louisiana State University, Newman Trowbridge Distinguished
Associate Professor of Law, Paul M. Hebert Law Center 50. Kendall Thomas, Nash Professor of Law, Columbia University 51. Robin Walker Sterling, Associate Professor, University of Denver Sturm College
of Law 52. Anna Welch, Clinical Professor, University of Maine School of Law 53. Erika K Wilson, Assistant Professor, University North Carolina School of Law
14

 
 Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

Case No. 1:17-cv-00255-TSC

Proposed Brief Amicus Curiae Of HIAS In Support Of Plaintiffs’ Motion For Preliminary Injunction

G. Eric Brunstad, Jr. DECHERT LLP 90 State House Square Hartford, CT 06103-3702 Phone: (860) 524-3999 Fax: (860) 524-3930 eric.brunstad@dechert.com

James E.B. Bobseine (Bar. No. 1019910) DECHERT LLP 1900 K Street, NW Washington, DC 20006-1110 Phone: (202) 261-3300 Fax: (202) 261-3333 james.bobseine@dechert.com

Counsel for Amicus Curiae

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 2 of 21 CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Amicus Curiae HIAS states that it is a not-for-profit refugee resettlement organization with no parent corporation and no publicly traded stock.
i

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 3 of 21 TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .............................................................................. i TABLE OF CONTENTS.............................................................................................................. iii TABLE OF AUTHORITIES ........................................................................................................ iii STATEMENT OF INTEREST...................................................................................................... 1 ARGUMENT ................................................................................................................................. 2
I. Refugees in America and the Executive Order...................................................... 2 II. Real-Life Stories of Those Affected by the Executive Order................................ 9 CONCLUSION............................................................................................................................ 16
ii

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 4 of 21
TABLE OF AUTHORITIES
Page(s)
Statutes
8 U.S.C. § 1101(a)(42).....................................................................................................................5
8 U.S.C. § 1158(b)(2)(A)(i)-(vi) ......................................................................................................7
8 U.S.C. § 1522................................................................................................................................5
Other Authorities
Crisis Looms at Kakuma Camp as South Sudanese Refugees Flee Conflict, DAILY NATION (Jan. 11, 2014), http://www.nation.co.ke/news/africa/Kakuma-SouthSudan-Conflict-Refugee-Camp/1066-2142410-np3d4c/index.html ........................................12
Elsa Buchanan, String of Rapes in Kenya’s Kakuma Refugee Camp Force Communities to Set Up Vigilante Groups, International Business Times (June 28, 2016), available at http://www.ibtimes.co.uk/string-rapes-kenyas-kakumarefugee-camp-forces-communities-set-vigilante-groups-1567694 ..........................................12
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) .......................................................2, 3
Exec. Order No. 13,780, 82 Fed. Reg. 13209 (March 6, 2017)...................................................3, 4
Introductory Note by the Office of the UNHCR, available at www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relating-statusrefugees/html..........................................................................................................................8, 9
Jeff Crisp, A State of Insecurity: The Political Economy of Violence in RefugeePopulated Areas of Kenya 2 (Evaluation and Policy Analysis Unit, UNHCR, Working Paper No. 16, 1999), available at http://www.unhcr.org/enus/research/working/3ae6a0c44/state-insecurity-political-economy-violencerefugee-populated-areas-kenya.html..................................................................................11, 12
Nicholas Seeley, The Last Refugee Camp: Could the World’s Go-To Strategy of Warehousing the Displaced Finally Be Changing?, Foreign Policy (Oct. 30, 2013), available at http://foreignpolicy.com/2013/10/30/the-last-refugeecamp/ ........................................................................................................................................12
Reports Thousands of Refugees Fled Kenya’s Kakuma Camp After Violence, SBS (Nov. 7, 2014), http://www.sbs.com.au/news/article/2014/11/07/reportsthousands-refugees-fled-kenyas-kakuma-camp-after-violence; ..............................................12
iii

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 5 of 21
Susannah Cunningham, Inside the Brutal, Thorough Process of Vetting Refugees (Feb. 2, 2017), www.vox.com/first-person/2017/2/2/14459006/trumpexecutive-order-refugees-vetting ...............................................................................................8
United Nations Convention of the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, available at http://www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relating-statusrefugees.html..........................................................................................................................4, 5
United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, available at http://www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relating-statusrefugees.html ..............................................................................................................................5
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, HCR/IP/Eng/Rev. 1, UNHCR 1979, reedited January 1992 ....................................5
U.S. Citizen and Immigration Services, Refugee Processing and Security Screening, http://www.uscis.gov/refugeescreening ...............................................................6, 7
U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs (Jan. 20, 2017), https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm.......................................4, 6
U.S. Dep’t of State State, U.S. Refugee Admissions Program, http://www.state.gov/j/prm/ra/admissions/index.htm ........................................................6, 7, 8
iv

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 6 of 21

STATEMENT OF INTEREST This case tests the propriety of President Donald Trump’s Executive Order No. 13,780 (“Executive Order” or “Order”), which, among other things, temporarily suspends the entire U.S. Refugee Admission Program (“USRAP”). As the world’s oldest refugee protection and resettlement agency, HIAS has a considerable interest in USRAP, as well as unique insight into the practical consequences of the suspension of the program.1 HIAS was founded in the 1880s to help resettle Jews fleeing persecution in tsarist Russia. Over time, it has expanded its mission, and today HIAS provides services to any refugees in need of assistance, regardless of their national, ethnic, or religious background. Since its founding, HIAS has helped more than 4.5 million refugees start new lives. HIAS assists refugees through a multi-pronged approach. It resettles and integrates refugees in the United States, offers legal assistance, facilitates psychosocial care, and provides resources for refugees to acquire economic stability. Additionally, HIAS advocates domestically and internationally for policies that properly account for the plight of refugees. Refugee resettlement in the United States lies at the heart of HIAS’s work. HIAS is one of only nine national agencies designated by the federal government to resettle refugees in the United States. Six of those agencies, including HIAS, are faith-based organizations. Each refugee who enters the United States must be sponsored by one of the nine agencies. As the oldest resettlement agency in the United States, HIAS uses its extensive expertise to resettle refugees from war-torn countries, helping them to integrate into their new homes and settings. Through

1

Plaintiffs have consented to the filing of this brief and Defendants have taken no position.

No counsel for any party authored this brief in whole or in part and no entity or person, aside from

amicus curiae, its members, and counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 7 of 21
local affiliates, HIAS helps refugees navigate their new life and become self-sufficient through employment.
The Executive Order has directly impacted HIAS’s mission to help refugees by suspending USRAP. The opaque implementation of the Order has caused confusion and extreme, dire consequences for HIAS’s refugee clients. Because HIAS has spent more than a century developing its expertise with refugees and refugee issues, HIAS is in a position to offer insight into the refugee application and vetting process as well as the real-world consequences of the Executive Order. To that end, HIAS submits this brief with two essential purposes in mind: (1) to help explain the refugee program, and (2) to provide real-life narratives of the effects of the Order on the lives of refugees.
ARGUMENT I. Refugees in America and the Executive Order
On January 27, 2017, President Trump signed the first of two Executive Orders relating to USRAP, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan 27, 2017) (“First Executive Order” or “First Order”). The First Executive Order temporarily prohibited entry of all nationals from seven majority-Muslim countries, and directed the Secretary of State to “suspend the U.S. Refugee Admissions Program [USRAP] for 120 days.” Id. § 5. With respect to Syrian nationals— approximately 4.8 million of whom are presently refugees—section 5(c) “proclaim[ed] that” their entry “as refugees is detrimental to the interests of the United States and thus suspend[ed] any such entry indefinitely.” Id. § 5(c). During the temporary suspension of USRAP, the order provided that “the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis . . . only so long as they determine that the admission of such individuals as refugees is in the national interest—including when the person is
2

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 8 of 21
a religious minority in his country of nationality facing religious persecution.” Id. § 5(e). Once USRAP is resumed, the First Executive Order directed similar religious minority prioritization and instructed the Secretary of State, in consultation with the Secretary of Homeland Security, to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Id. § 5(b).2
The First Executive Order sparked lawsuits across the country, including this one. On February 3, 2017, the District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining enforcement of the First Order. See Am. Compl. ¶ 92, Doc. No. 34 (citing Washington v. Trump, No. 17-0141, 2107 WL 462040 (W.D. Wash. Feb. 3, 2017)). The Ninth Circuit denied the Government’s request for an emergency stay of the injunction. Id. ¶ 95.
The Executive Order now at issue in this case was executed on March 6, 2017 and bears the same title as the First Order. Exec. Order 13,780, 82 Fed. Reg. 13209 (March 6, 2017). The Executive Order temporarily prohibits for 90 days entry of all nationals from six of the seven majority-Muslim countries named in the First Order, excepting only nationals from Iraq. Id. § 2(c). Like the First Order, the Executive Order “suspend[s] travel of refugees into the United States under the USRAP” and suspends decisions on applications for refugee status for 120 days. Id. § 6. In spite of the suspension of USRAP, “the Secretary of State and Secretary of Homeland Security may jointly determine to admit . . . refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.” Id. § 6(c). The

2

President Trump indicated that the prioritization of religious minorities was intended to

favor Christian Refugees. Am. Complaint ¶ 68, Doc. No. 34.

3

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 9 of 21
Executive Order gives as an example of a circumstance where entry would be allowed a situation where “the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.” Id. Unlike the First Order, the Executive Order does not expressly allow a preference for religious minorities.
Invoking national security interests, the administration has proffered that the prohibition on Muslim refugees and suspension of USRAP is a necessary means to protect against terrorist entry and activities. This justification is divorced from logic and reality. Refugees, particularly Syrian refugees, are the most intensely vetted entrants to the United States. An applicant who has obtained refugee status will have undergone years of intensive interviews, biometric checks, and screenings, with vetting from multiple international and national security organizations. Moreover, the invocation of national security interests and the intimation that Muslims are terrorists is a transparent attempt to further the same discriminatory, vitriolic anti-Muslim rhetoric that defined President Trump’s presidential campaign.
Unless stayed, the Executive Order’s present and future effect on Muslim refugees from majority-Muslim countries will be devastating, and its terms profoundly offend this country’s fundamental commitments under national and international law. Refugees are recognized by national and international principles as among the “world’s most vulnerable people.” U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs (Jan. 20, 2017), https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm. Their status as a class requiring heightened protections and international cooperation is enshrined in the United Nations Convention on the Status of Refugees (the “Convention”) and the 1967 Protocol to the Convention (the “Protocol”). United Nations Convention on the Status of Refugees, July 28, 1951, 19 U.S.T.
4

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 10 of 21
6259, 189 U.N.T.S. 137 and United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, available at http://www.unhcr.org/enus/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html.3 According to the Convention and Protocol, the term refugee “shall apply,” inter alia, to any person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Convention, art. 1(A)(2); Protocol, art. 1 (extending the Convention definition of refugee to encompass those who became refugees due to events that proceeded January 1951).4 To qualify as a refugee and resettle in the United States, a refugee must navigate a labyrinth of processes and investigations designed precisely to protect national security interests while assessing the refugee’s entitlement to status and resettlement. According to the U.S. State Department, refugees undergo the “most intensive security screening of any traveler to the United

3

The United States is party to the Protocol and has “undertake[n] to apply articles 2 to 34

inclusive of the Convention” to refugees by virtue of its accession. Protocol, art. 1(1); see also

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951

Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/Rev. 1,

UNHCR 1979, reedited January 1992, at ¶ 9, available at http://www.unhcr.org/4d93528a9.pdf

(“By accession to the 1967 Protocol, States undertake to apply the substantive provisions of the

1951 Convention to refugees as defined in the Convention, but without the 1951 deadline.”). The

United States has codified certain principles of these conventions as part of national law. See 8

U.S.C. § 1522.

4

Under U.S. law, a refugee is similarly defined as “any person who is outside any country

of such person’s nationality, or in the case of a person having no nationality, is outside any country

in which such person last habitually resided, and who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion[.]” 8 U.S.C.A. § 1101(a)(42).

5

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 11 of 21
States.” 5 U.S. Department of State, U.S. Refugee Admissions Program FAQs (Jan. 20, 2017), https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm.
In light of the administration’s assertion that the vetting process needs to be even more extreme than it currently is, the details of the current process bear explication. The process typically begins with the office of the United Nations High Commissioner for Refugees (“UNHCR”), which interviews and screens the applicant and determines whether the applicant may qualify as a refugee, and where the applicant may resettle.6 See U.S. Dep’t of State, U.S. Refugee Admissions Program, https://www.state.gov/j/prm/ra/admissions/index.htm. Next, the Resettlement Support Center (“RSC”)7 will interview the applicant and enter the relevant application document into the Department of State’s Worldwide Refugee Admission Processing System (“WRAPS”), cross reference and verify the data, and send information required for a background check to other U.S. agencies. Id. Multiple national security agencies, including the National Counterterrorism Center, Department of Homeland Security (“DHS”),8 Federal Bureau

5

Syrian refugees are subject to heightened security screening. See U.S. Citizen and

Immigration Services, Refugee Processing and Security Screening, http://www.uscis.gov/

refugeescreening.

6

In certain circumstances, specially trained non-governmental organizations will identify

the refugee and begin this process. See U.S. Dep’t of State, U.S. Refugee Admissions Program,

https://www.state.gov/j/prm/ra/admissions/index.htm. Certain refugees may start the application

process without a referral from the UNHCR or entity. Id. These refugees are often close relatives

of asylees and refugees already in the U.S., or belong to specific groups identified in by statute or

the U.S. Department of State as eligible for direct access to the refugee and resettlement program.

Id.

7

The RSC is funded by the U.S. Department of State’s Bureau of Population, Refugees and

Migration (“PRM”). Id.

8

DHS will conduct an advanced screening of Syrian refugees. Id.

6

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 12 of 21

of Investigation (“FBI”),9 Department of State, and intelligence agencies will screen the applicant and assess any security threats, including any connections to known bad actors, and past immigration and criminal violations.10 Id.
Once results are screened, the United States Citizenship and Immigration Services (“USCIS”), a component of DHS, will interview the applicant in a host nation or, in exceptional circumstances, in the applicant’s country of origin. During this interview, a USCIS officer collects additional biometric data.11 Id. This biometric data is used to conduct an additional series of checks. Additionally, anytime the applicant’s information changes at any point in the process, the information is entered into WRAPS and new security checks are initiated. Id. Inconsistencies will place the case on hold until resolved. Id.12 Should the application proceed, applicants must

9

The FBI and intelligence community partners will conduct and prepare a Security Advisory

Opinion (“SAO”), which is a biographic check “for an applicant who is a member of a group or

nationality that the United States government has designated as requiring this higher level check.”

See U.S. Citizen and Immigration Services, Refugee Processing and Security Screening, available

at https://www.uscis.gov/refugeescreening.

10 United States refugee law includes several exclusions from refugee status rendering certain categories of individuals ineligible for asylum protections. The exclusions include, for example, a person who participated in persecution or who has been convicted by a final judgment of a “particularly serious crime” and therefore “constitutes a danger to the community of the United States.” See 8 U.S.C.A. § 1158(b)(2)(A)(i)-(vi).

11 Fingerprints are stored in a DHS database and screened against: the FBI biometric database, the DHS biometric database, and the U.S. Department of Defense database. U.S. Dep’t of State, U.S. Refugee Admissions Program, http://www.state.gov/j/ prm/ra/admissions/index.htm.

12 The Department of State, through the Consular Lookout and Support System (“CLASS”), will also initiate name checks on the applicant’s primary names and any variations used by the applicant. Responses are received before the USCIS conducts its interview, and possible matches are reviewed and adjudicated by USCIS headquarters. If another name or variation is identified during the USCIS interview, another name will be screened through CLASS. See U.S. Citizen and Immigration Services, Refugee Processing and Security Screening, https://www.uscis.gov/refugeescreening. CLASS also includes information from: National Counterterrorism Center/Terrorist Screening Center; Treasury Enforcement Communications System, Interpol, Drug Enforcement Administration, Health and Human Services, and FBI. Id.
7

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 13 of 21
complete a cultural orientation course and a medical screening, the results of which are also entered into WRAPS. Id. If the case is cleared, resettlement agency representatives, who meet weekly to review WRAPS information, will determine where to resettle the refugee. Id. Should the applicant be assigned to the United States, the applicant will be subject to further screening from United States Customs and Border Protection, and the Transportation Administration’s Secure Flight Program. Id.
This overview of the vetting process, which captures its stringency, does not convey a fraction of the uncertainty and fear refugees endure during the months and years that the process typically takes. Individuals fleeing life-threatening circumstances are required to recount, in detail and repeatedly, every hardship to the agencies and departments that will determine their fate. They must do so in a system wherein they shoulder the burden of proving their own vulnerability. See, e.g., Susannah Cunningham, Inside the Brutal, Thorough Process of Vetting Refugees (Feb. 2, 2017), www.vox.com/first-person/2017/2/2/14459006/trump-executive-order-refugees-vetting. Individuals who have obtained refugee status may languish for years in refugee camps or temporary havens before being permitted to formally resettle in the United States. See infra Section II.
Moreover, the administration’s anti-Muslim stance on refugee resettlement, reflected most glaringly by its determination to grant priority processing to religious minorities in majority Muslim countries, runs deeply afoul of principles fundamental to the Convention, “most notably, non-discrimination.” Introductory Note by the Office of the UNHCR, available at www.unhcr.org/en-us/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees/
Additionally, if, during the process, any national security concerns are raised, USCIS conducts an additional review through the Controlled Application Review and Resolution Process.
8

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 14 of 21
html. Convention principles “are to be applied without discrimination as to race, religion, or country of origin.” Id. The administration’s purpose of preventing Muslims from nearing national ports of entry is well-documented, and disturbingly unambiguous. The purported priority to be granted to religious minorities deepens a discriminatory policy against Muslims. Among other things, this reflects a gross misunderstanding of the enormous range of refugee experiences, see infra Section II, and of the nation’s international commitments to ease the plight of refugees regardless of their religious views and national origins. II. Real-Life Stories of Those Affected by the Executive Order.
Unless stayed, the Executive Order will cause needless and unjustifiable irreparable harm to vulnerable refugees and their families. What is more, the order is set to be applied in ways that are contrary to the core of the American ethos. Our country prides itself as a beacon of hope for people suffering under totalitarian regimes. Further, many of the people the Order would bar are in fact among the most in need of our hospitality, people we should be encouraging to seek our help. This section offers a representative sampling of their circumstances.
Ten-year-old Julie and twelve-year-old Aicha,13 two girls from the Democratic Republic of Congo, are prime examples of the crucial need for USRAP. Until recently, these girls were living in a refugee camp in Uganda. They have suffered the loss of their birth family and experienced first-hand the challenges of subsistence survival in a war-torn and unstable country. The refugee camp where they lived is no place for children, especially those without family members to look after them. The educational services are inadequate, and they were not receiving enough nutrition—the girls weigh only 49 and 58 pounds. After staying unaccompanied in their refugee camp for an extended period, they were finally approved to come to the U.S. as refugees
13 The names of the individuals whose stories are discussed in this brief have been altered. 9

Case 1:17-cv-00255-TSC Document 62 Filed 03/31/17 Page 15 of 21
and a foster family was lined up for them. Yet, when the First Executive Order was issued, their travel to the United States was delayed and, for a time, uncertain. It is only because of the District of Washington’s order staying the First Order that these children were able to leave the refugee camp and join their foster family. But other children like Julie and Aicha remain in refugee camps, living in dangerous and unsafe conditions and denied the opportunity for the kind of life all children deserve. Unless stayed, the Executive Order would stand between these children and a stable home, with caring adult supervision and educational opportunities.
Another family needlessly separated by the First Executive Order, and who would continue to be separated by the Executive Order if it is not stayed, are a husband and wife from Somalia. The wife, Fawzia, is a Somali refugee who resettled in the United States in 2016. She originally fled Somalia in 2011 to escape ongoing persecution during the civil war. She and her family went to India, where she met and later married her husband, who was also a refugee from Somalia. Though Fawzia resettled in the United States last year, her husband remained behind. Now, with the Order in place, Fawzia’s husband is prevented from reuniting with his wife, perhaps indefinitely, unless the Order is stayed.
Fawzia has endured much to come to this country. She escaped the horrors of war, overcame the trials of living in a refugee camp, and navigated the resettlement process to come to the United States. After all of that, she now lives in a country that would categorically deny her husband the chance to join her solely because of the place where he was born. Understandably, Fawzia finds life without her husband to be difficult. Fawzia is one of the many victims the Order would impact, separated from loved ones not based on her actions, but on categorical assumptions regarding a whole population.
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A similar story is that of another Somali refugee currently living in the Midwest who is waiting to be reunited with her husband. Since the issuance of the Executive Order, she has been suffering and was forced to leave school to find full-time employment to support herself and her husband. She and her husband had planned to work on a part-time basis in order to attend school. But with the Executive Order in place, she has been forced to both take care of herself and send money to her husband who is unable to join her here, and will continue to be unable to join her unless the Order is stayed. She is not certain she can continue in this way.
By suspending indefinitely the process of resettling refugees in the United States, the Order would endanger the lives of many refugees who are forced to remain in dangerous camps, which pose unique risks. Due to overpopulation and underfunding, many camps are often unable to provide adequate nutrition and medical services to their residents, and the camps experience high rates of violence and crime. And while individuals in these camps live with ongoing anxiety for their safety and stability, the fear of leaving their families in these conditions is even greater. The First Order and the Executive Order have resulted in mass panic for those individuals who now find themselves separated from their families left behind to face the conditions of the camps without them. This is the case for 22-year-old Namir who is currently living in the United States separated from his family.
Namir and his family fled persecution in Sudan, and were relocated to the Kakuma refugee camp. Operated by the office of the United Nations High Commissioner for Refugees, efforts to make the Kakuma camp and surrounding areas safe have been largely unsuccessful.14 As a result,
14 Jeff Crisp, A State of Insecurity: The Political Economy of Violence in Refugee-Populated Areas of Kenya 2, 12-14 (Evaluation and Policy Analysis Unit, UNHCR, Working Paper No. 16, 1999) at 2, 12-14, available at http://www.unhcr.org/en-us/research/working/3ae6a0c44/stateinsecurity-political-economy-violence-refugee-populated-areas-kenya.html.
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refugees face rape, violence, and death on a daily basis.15 In fact, violence and crime have become so prominent in Kakuma that refugees have ironically begun fleeing the camp in search of a safer location.16 Yet Namir and his family lived under these conditions for ten years, with the hope that their struggles would allow them to begin new lives in the United States.
Finally, after a decade in Kakuma, Namir and his family were granted refugee status in the U.S. However, due to the vagaries of the vetting process, Namir was cleared to come to the United States first. Namir arrived alone in the southwest in December 2016. With ambitions of becoming a doctor, lawyer, or businessman, Namir immediately began working with a local resettlement organization to enroll in community college where he is taking advanced English classes. With the help of the local organization, Namir is also in the process of finding a job and inquiring into various vocational training programs.
Namir is still waiting for his family to arrive in the United States. If the Order is allowed to go into effect, the remainder of his family will be unable to join Namir. Indeed, the issuance of the First Order followed by the current Executive Order swiftly robbed Namir and his family of the joy and relief they had initially shared when they were given the news that, after ten years of struggling together in Kakuma, they would be able to start new lives in the United States. For
15 Id. at 3-12; see also, e.g., Elsa Buchanan, String of Rapes in Kenya’s Kakuma Refugee Camp Force Communities to Set Up Vigilante Groups, International Business Times (June 28, 2016), available at http://www.ibtimes.co.uk/string-rapes-kenyas-kakuma-refugee-camp-forcescommunities-set-vigilante-groups-1567694; Nicholas Seeley, The Last Refugee Camp: Could the World’s Go-To Strategy of Warehousing the Displaced Finally Be Changing?, Foreign Policy (Oct. 30, 2013), available at http://foreignpolicy.com/2013/10/30/the-last-refugee-camp/. 16 Reports Thousands of Refugees Fled Kenya’s Kakuma Camp After Violence, SBS (Nov. 7, 2014), http://www.sbs.com.au/news/article/2014/11/07/reports-thousands-refugees-fled-kenyaskakuma-camp-after-violence; Crisis Looms at Kakuma Camp as South Sudanese Refugees Flee Conflict, DAILY NATION (Jan. 11, 2014), http://www.nation.co.ke/news/africa/Kakuma-SouthSudan-Conflict-Refugee-Camp/1066-2142410-np3d4c/index.html.
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now, Namir is alone and worries that he will never see his family again, in part because he is unsure how much longer his family can survive the violence and poverty that plague Kakuma while they wait to travel to the U.S.
Mustafa is a lawful permanent resident and a refugee originally from Iraq. His brother Yusuf, Yusuf’s wife, and their four children fled Iraq and have been living in an apartment in Jordan for the past three years awaiting resettlement in the U.S. Yusuf and his family had lived previously in a Shia area of Iraq and were persecuted for being Sunni Muslims. Some Shia individuals told Yusuf and his family that if they did not leave they would all be killed. The same individuals were responsible for shooting Yusuf’s nephew. Yusuf has since become very depressed after learning that he and his family would no longer be resettled in the U.S. if the Order goes into effect. Mustafa last saw his brother Yusuf in late 2015.
Daniel is a lawful permanent resident and refugee originally from Ethiopia. His wife and child live currently in Cairo, Egypt, awaiting resettlement in the U.S. Daniel’s wife is unemployed, and the Egyptian government provides limited assistance to refugees. Daniel’s wife is Christian and she lives in fear. Daniel last saw his wife and child a year ago, and he fears that he will never see them again if the Order goes into effect.
The Executive Order’s suspension of USRAP similarly threatens to prevent other families from being reunited with elderly and infirm loved ones, perhaps permanently. An Eritrian refugee, Eden, has had substantial success as a permanent resident in the United States, teaching herself English, attending nursing school, and recently welcoming her first child. But she fears constantly for her mother, who Eden has not seen in nearly seven years. Her mother was forced to flee from Eritrea after being harassed for her religion as a Pentecostal Christian. Eden’s mother was fully vetted and approved as a refugee prior to the First Executive Order, but her scheduled flights were
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cancelled following that Order. Eden’s mother is currently scheduled to travel to the United States imminently, but she is able to do only because the Order is currently enjoined. Should the Order be enforced, others like Eden face the reality that the Order may prevent them from ever seeing elderly or sick relatives again.
Magan, a Somali refugee, struggles with the same situation only in reverse: he is an elderly man now living in the United States, and it is his daughter and her children who remain trapped abroad. Like Eden’s mother, Magan’s daughter and her family have been vetted and approved as refugees, but their scheduled travel plans were cancelled following the Order. Since that time, Magan has not been able to sleep. He is kept awake by the worry that he will not see his daughter again before he dies and that she and her children may be forever blocked from safety.
It is also worth illustrating that the order has had a negative impact not only on refugees and their families, but also on those in the United States who would assist them. An example is Clara, a U.S. citizen who came to the United States twenty-two years ago. Originally from Jordan, she still has family there with whom she speaks every week. Some of Clara’s family members in Jordan told her that they have been assisting a Syrian family, a couple and two children who are preparing to come to the U.S. Clara volunteered to assist the Syrian family, and in anticipation of their arrival has been collecting and storing donated furniture for them in her garage. Clara’s relatives provide her with regular updates on the welfare of the Syrian family. They are Muslim refugees who were forced to flee Syria.
While in Syria, the family had been abused, lost relatives, and otherwise experienced the horrors of war. The father, Sami, is unable to work in Jordan and must rely on friends for support. He is falling behind on his rent and utilities, and the owner of the home where he and his family are staying has threatened eviction. Sami suffers from depression because he cannot provide for
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his family and children. Sami and his family were ready to come to the U.S., but now they fear that they will not be able to if the Order goes into effect.
Unless stayed, the tragic reach of the Executive Order would not be limited to families in camps in Africa or stranded in dangerous places in the Middle East, but to refugees worldwide. Monica and Diego are currently living with their grandmother and mother in El Salvador. They are considering moving to their aunt’s house in another area because of the gangs. A gang member has been attempting to force himself on Monica. Diego has already been forced to leave the area once when gangs tried to recruit him. He eventually went back to live with the rest of his family, but now the problem has gotten worse. They are not safe there. Their father, Santos, works as a carpenter, and last saw his children in 1999 when he left for the United States. It is often difficult for Santos to speak with them. Santos, who is lawfully present in the United States, works with a carpentry company and this allows him to send money back home to his children, but this does not ensure their safety. He is waiting for Monica to be resettled to the United States as a refugee through the Central American Minors program.
These individuals, and thousands more like them, have been, and would continue to be, needlessly harmed by the Executive Order. Unless stayed, the Order poses an immediate threat to the lives and wellbeing of thousands of refugees. The Court should consider the plight of these individuals in its deliberations.
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CONCLUSION For the foregoing reasons, as well as those set forth in Plaintiffs’ Memorandum of Law in Support of Motion for Preliminary Injunction, the Amicus respectfully requests that the Court grant the Motion.

Dated: March 29, 2017

Respectfully Submitted,
/s/ James E.B. Bobseine James E.B. Bobseine (Bar No. 1019910) DECHERT LLP 1900 K Street, NW Washington, DC 20006-1110 Phone: (202) 261-3300 Fax: (202) 261-3333 james.bobseine@dechert.com
G. Eric Brunstad, Jr. DECHERT LLP 90 State House Square Hartford, CT 06103-3702 Phone: (860) 524-3999 Fax: (860) 524-3930 eric.brunstad@dechert.com

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 Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

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PARS EQUALITY CENTER, et al.,

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Plaintiffs,

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v.

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DONALD J. TRUMP, President of the |

United States, et al.,

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Defendants.

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No. 1:17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan Date: March 27, 2017

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman (D00322) Tahlia Townsend (PHV pending) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com

Counsel for Amici Curiae

Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 2 of 34
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii INTEREST OF AMICI CURIAE..................................................................................................1 ARGUMENT..................................................................................................................................2 I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL
SECURITY OR FOREIGN POLICY GROUNDS.........................................................3 A. There is no national security or foreign policy basis for suspending entry of aliens
from the six named countries...................................................................................4 B. The suspension of refugee admissions is not justified by national security or
foreign policy concerns..........................................................................................10 II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS...........................12 A. The Order is of unprecedented scope.....................................................................13 B. The Order will do serious damage to our national security and foreign policy
interests. .................................................................................................................13 1. The Order will endanger U.S. troops in the field...........................................13 2. The Order will disrupt essential counterterrorism, foreign policy, and
national security partnerships. .......................................................................14 3. The Order will hinder domestic law enforcement efforts. .............................15 4. The Order will have a devastating humanitarian impact. ..............................16 5. The Order will cause economic damage to American citizens and
residents. ........................................................................................................16 III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC
STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.. .................................................17 CONCLUSION ............................................................................................................................22 APPENDIX: LIST OF AMICI
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TABLE OF AUTHORITIES
Cases Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __, 2017 WL
580855 (E.D. Va. Feb. 13, 2017)................................................................................................ 5 U.S. v. Fordice, 505 U.S. 717 (1992) ..................................................................................... 17, 18 Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).............................. 17 Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497, slip op. (9th
Cir. Feb. 9, 2017) ........................................................................................................................ 5
Statutes 8 U.S.C. § 1182............................................................................................................................. 19 8 U.S.C. § 1187............................................................................................................................... 9
Regulations Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962)...................................................... 20 Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981) ................................................... 13 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992) .................................................... 13 Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015) ...................................................... 13 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) .................................................... 13 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017)........................................................ 3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)......................................................... 3
Other Authorities Adams Nager, et al., The Demographics of Innovation in the United
States, Information Technology & Innovation Foundation (Feb. 2016) .................................. 17 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on
Immigration, CATO at Liberty (Jan. 25, 2017).................................................................... 4, 11 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute
(Sept. 13, 2016)..................................................................................................................... 5, 10
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Alex Nowrasteh, 42 Percent of 'Terrorism-Related' Convictions Aren't for Terrorism, Cato Institute (Mar. 6, 2017) .................................................................................... 5
Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015) ................................................................................................................................... 11
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv. (2016)................................................................................................................. 8
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv. (2006) .......................................................................... 12
Annex of Statistical Information, Country Reports on Terrorism (June 2015) .............................. 6
Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d __, 2017 WL 526497 (9th Cir. Feb. 9, 2017).................................................................................................. 17
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008)................................................................................................... 22
Central Intelligence Agency, 11 September 2001 Hijackers .......................................................... 5
Edward Alden, The Closing of the American Border 104-06 (2008) ........................................... 19
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017)................................................................................................... 19, 20
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017) ........................................................ 5
Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017)......................................... 20
George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015)................................................................................................ 5
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act: Provisions and Funding (2016) ................................................................................................ 18
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017) ........................................................................................................................... 15
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017) ................................................... 8, 19
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017) ............................................ 19
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Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017) .................................................................................................................. 14
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016) .............................................................................. 15
Martha Nussbaum et al., White House Creates Confusion About Future of Trump's Travel Ban, Politico (Feb. 21, 2017) ...................................................................... 3, 21
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001) ............................................................................................................................ 19
Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017) ...................................................... 19, 20
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017)...................................................................... 15
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007) .............................................................................. 5
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012) ................................................................................................................................ 15
Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017).......................................................................................... 5
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017) ....................................................... 17
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ......................... 5
Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017).................................................................. 14
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ............................... 8
Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).......................................................................... 4
Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017) ............................................................................................................... 14
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs) ............................................... 8
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The Security of U.S. Visa Programs: Hearing Before the S. Comm on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña) ................................................................................................. 7
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015) .................................... 9 Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A Staff Report of the
National Commission on Terrorist Attacks Upon the United States (2004)............................. 19 U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for
the Visa Waiver Program (Feb. 18, 2016).................................................................................. 9 U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services
(Dec. 3, 2015) ........................................................................................................................... 11 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel
and Tourism Expenditures (Dec. 15, 2016) .............................................................................. 16 U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions
for Fiscal Year 2016 (2016)...................................................................................................... 14 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian
Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016) .................................................. 12 U.S. Dep’t of State, The Refugee Processing and Screening System ............................................. 4 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs .................................................... 11 U.S. Dep’t of State, Visa Waiver Program..................................................................................... 9 U.N. High Commissioner for Refugees, Resettlement ................................................................. 12 Urban Justice Center, International Refugee Assistance Project, IRAP Stands With
Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017) .......................... 14 William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at
Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009) ...................................................... 18
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INTEREST OF AMICI CURIAE Amici curiae are former national security, foreign policy and intelligence officials who have worked on pressing national security matters in the U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the original January 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Order”), and weeks before the new March 6, 2017 Executive Order bearing the same title (“March 6 Order”). On February 16, 2017, amici filed an amicus brief in Darweesh v. Trump in the U.S. District Court for the Eastern District of New York, expressing our view that the January 27 Order “cannot be justified on national security or foreign policy grounds” and “would undermine the security of the United States.” Amici have reached the same conclusion about the March 6 Order, which presents and preserves the same core problems as its predecessor. Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. Amici nevertheless do not believe that risk merits the blanket and counterproductive bans on entry into the United States established by the Orders, either in its original form or as revised.
ARGUMENT The March 6 Order serves no persuasive national security or foreign policy purpose. Left in place, the Order will do long-term damage to our national security and foreign policy interests. It will endanger troops in the field, and disrupt key counterterrorism and
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national security partnerships. It will aid the propaganda effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its recruitment message. By feeding the narrative that the United States is at war with Islam, the Order will impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism. And it will have a damaging humanitarian and economic impact.
Indeed, the March 6 Order preserves the same problematic features of the January 27 Order that were outlined in the original brief filed by many of the same amici in Darweesh. The March 6 Order continues to impose a blanket ban on entry from the listed countries that cannot be justified on national security or foreign policy grounds. The March 6 Order continues to depart from the particularized review based on credible intelligence-based threats that has been a core premise of our border security efforts across decades of administrations led by Presidents from both parties. And rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” did not disguise the January 27 Order’s discriminatory intent, or make it necessary, effective or faithful to America’s Constitution, laws, and values. The few changes that were introduced in the March 6 Order do not cure this discriminatory intent, or suddenly provide a persuasive basis for the Order on national security or foreign policy grounds.
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I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL SECURITY OR FOREIGN POLICY GROUNDS. On January 27, 2017, President Donald Trump signed an executive order imposing a
number of suspensions on the entry of non-citizens into the United States.1 The President’s stated goals for the Order were to “protect[] the nation from foreign terrorist entry into the United States” and to “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”2 On March 6, 2017, following weeks of litigation, the Administration issued a revised version of the Executive Order.3 This March 6 Order revokes the January 27, 2017 Order and makes several changes to that Order, including exempting green card holders and valid visa holders from the immigration restrictions and removing Iraq from the list of excluded countries. However, the Order continues to suspend travel from the listed countries for 90 days from its effective date. The Order continues to suspend refugee admissions for 120 days.4 And in the words of a senior advisor to President Trump, the Order still aims to guarantee the “same basic policy outcome.”5
As former U.S. officials responsible for the national security and foreign relations of the United States in multiple presidential administrations, amici have devoted their careers to the safety and welfare of the American people. Yet the March Order continues to bear no rational relation to the President’s stated aim of protecting the nation from foreign terrorism. It
1 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 2 Id. 3 Exec. Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017). 4 A redlined comparison of the two Orders can be found at: http://aclum.org/wpcontent/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-BanEO.pdf. 5 Matthew Nussbaum et al., White House Creates Confusion About Future of Trump’s Travel Ban, Politico (Feb. 21, 2017).
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targets countries whose nationals have committed no lethal terrorist attacks on U.S. soil in the last forty years. It suspends the entry of refugees—the vast majority of whom are vulnerable women and children6—when in the modern era of screening, no refugee has ever killed a U.S. citizen in a terrorist attack in the United States.7
Even now, weeks after the signing of the original January 27 Order, Respondents have supplied no persuasive information that would justify such a categorical ban, even in this revised form. They make no showing that our immigration system has suffered from inadequate consideration of national origin or religious affiliation, and identify no flaw in the current individualized vetting procedures—developed by national security officials across several presidential administrations in response to particular threats identified by U.S. intelligence.
A. There is no national security or foreign policy basis for suspending entry of aliens from the six named countries.
No legitimate national security purpose is served by the Order’s blanket ban on entry into the United States of nationals of Syria, Sudan, Iran, Somalia, Libya, and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years.8 The January Order opened with a reference to the September 11, 2001 attacks, and White House officials have since pointed to those attacks as justification for its restrictions.9 But none of the September 11 hijackers were citizens of the
6 U.S. Dep’t of State, The Refugee Processing and Screening System, https://www.state.gov/documents/organization/266671.pdf. 7 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh Jan. 2017”] 8 Id. 9 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).
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six targeted countries.10 In fact, multiple studies show that the overwhelming majority of
individuals who were charged with—or who died in the course of committing—terrorist-related
crimes inside the United States since September 11 have been U.S. citizens or legal permanent
residents.11
The U.S. government provided no evidence to the contrary in its initial January 27
Order.12 The March 6 Order now offers the assertion that “[s]ince 2001, hundreds of persons
born abroad have been convicted of terrorism-related crimes in the United States.” The Order
does not actually cite any support for this statement. But a similar set of data—relied on by
White House officials in recent weeks to justify the initial January 27 Order—has been widely
criticized for its definition of terrorism-related offenses, among other issues.13
Second, Respondents have identified no persuasive basis for believing that a heightened
or particularized future threat has suddenly arisen from the six named countries. The January 27
Order was unable to muster any such explanation at all. The March 6 Order offers a series of
10 Central Intelligence Agency, 11 September 2001 Hijackers, https://www.cia.gov/newsinformation/speeches-testimony/2002/DCI_18_June _testimony_new.pdf. 11 See Peter Bergen et al., Terrorism in America After 9/11, New America Foundation, www.newamerica.org/in-depth/terrorism-in-america/; George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017); Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016) [hereinafter “Nowarsteh Sept. 2016”]. 12 See Washington v. Trump, No. 17-35105, __ F.3d __ at 26, 2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __ at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). 13 See, e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007); Nowaresteh Jan. 2017, supra note 7; Alex Nowrasteh, 42 Percent of ‘Terrorism-Related’ Convictions Aren’t for Terrorism, Cato Institute (Mar. 6, 2017).
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excerpts from the 2015 Department of State Country Reports on Terrorism and elsewhere, describing how these nations are home to violent extremist groups, and do not cooperate in U.S. counterterrorism efforts. However, the Country Reports only once again confirm the imprecision of the country bans in the Order: They point out, for example, that more than 55 percent of all terrorist attacks in 2015 took place in only five countries (Iraq, Afghanistan, Pakistan, India and Nigeria), none of which are subject to the travel ban.14 At any rate, the Order does not plausibly make the case that the threat has recently increased from these areas of the globe such that a sudden country-based ban is needed, or that a suspension of travel will lead to improved counterterrorism efforts or information sharing with these countries. And as amici explain later, there is actually ample reason to believe the Order will compromise our security programs.
The only other evidence cited by the Order for this proposition is a pair of anecdotal cases in which individuals who were originally refugees from the listed countries were later sentenced for terrorism-related crimes. But, one of those cases involved terror activities undertaken before the individual came to the United States, not acts on U.S. soil, and the current procedures already have been fully reviewed and revised to address the issues raised by that entry. The other individual was unable to execute on his plans at all, and in any event was admitted as a small child, and so it is difficult to see how a suspension of travel to improve the vetting process would have affected his entry, since he was radicalized here in the United States. And of course, the mere mention of these two cases hardly refutes the multiple, careful analyses cited earlier showing that they are very much the exception rather than the rule.15
14 Annex of Statistical Information, Country Reports on Terrorism 2015 (June 2016). 15 See supra note 11.
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A number of amici were current on active intelligence concerning all credible terrorist threat streams directed against the United States as of January 20, 2017. They know of no specific threat—just weeks later—that would have justified the January 27 ban on travel from these six countries. Amici are unaware of any new national security basis for a ban on six of those countries that might suddenly have surfaced in the weeks between that Order and the more recent March 6 ban.
Third, Respondents have identified no flaw in existing procedures that would justify the bans in the Order. Since the September 11, 2001 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting system is applied to travelers not once, but multiple times, and it is continually re-evaluated to ensure its effectiveness. Successive administrations have strengthened the vetting process through robust information-sharing and data integration. This approach allows the government to identify potential terrorists without resorting to blanket bans.16
Respondents offer no reason to move abruptly to a national origin-based ban, when the United States already has such a tested system of individualized vetting, developed and implemented by national security professionals across the government. In fact, information continues to surface that confirms that country-based bans are the wrong approach. For instance, since the initial Order was issued in January, a document surfaced from within the Department of Homeland Security itself, prepared in response to a request from the new Administration. The
16 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña), https://www.hsgac.senate.gov/hearings/the-security-of-us-visa-programs.
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document confirms that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”17
Finally, the Order cannot be defended as a mere continuation of recent U.S. counterterrorism policy. Because threat streams constantly evolve, amici sought continually to improve vetting when serving as national security officials. That effort included reviews in 2011 and 2015-16, when the U.S. government acted in response to particular threats identified by intelligence sources. In 2011, after receiving derogatory information regarding two Iraqi nationals who had entered the United States as refugees, the U.S. government undertook an extensive interagency review of its vetting system. The flow of refugees from Iraq slowed during the pendency of the review,18 and upon completion of the review, the U.S. government implemented new, stronger security procedures in areas of identified vulnerability.19
Likewise, in late 2015 and early 2016, in response to the emerging threat posed by ISIL, the U.S. government took several steps to strengthen the Visa Waiver Program, which allows citizens from thirty-eight approved countries to travel to the United States without first obtaining a visa. President Obama introduced a series of new measures to enhance security screenings and
17 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States [hereinafter “Citizenship Unlikely”], available at https://assets.documentcloud.org/documents/3474730/DHSintelligence-document-on-President-Donald.pdf. 18 Refugee Processing Center, Interactive Reporting, http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017). 19 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs), https://www.hsgac.senate.gov/hearings/ten-years-after-9/11preventing-terrorist-travel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv., 14 (2016).
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traveler risk assessments in the program and bolster our relationship with partner countries.20 Around the same time, President Obama signed into law a statute that removed from the Visa Waiver Program those nationals of existing Visa Waiver Program countries who: (1) had been present in Iraq, Syria, Iran or Sudan after March 1, 2011, or (2) were dual nationals of one of those four countries.21 Several months later, the Secretary of Homeland Security—acting under the new statute and in consultation with the Director of National Intelligence and the Secretary of State—expanded the list of four countries to include Yemen, Libya and Somalia.22
Contrary to Respondents’ claims, these previous reforms provide no justification for a blanket, group-based ban on the entry of nationals from these six countries. The enhancement of security in the refugee system allowed for more searching, individualized vetting of travelers, the opposite of the categorical ban in this Order. Similarly, the reforms to the Visa Waiver Program did not automatically bar anyone—including nationals of any country—from travel to the United States. The affected individuals were simply required to obtain individually-vetted visas before entering the United States, just as nationals from the more than 150 other nations not currently part of the Visa Waiver Programs must do.
To keep our country safe from terrorist threats, the U.S. government must gather all credible evidence about growing threat streams—including through the best available
20 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/30/fact-sheet-visa-waiverprogram-enhancements; U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram. 21 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. 22 The exemptions for Yemen, Libya and Somalia only applied to those who had traveled to or been present in one of those countries, not dual nationals. U.S. Dep’t of Homeland Security, supra note 20.
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intelligence—to thwart those threats before they ripen. Through the years, national securitybased immigration restrictions have: (1) responded to specific, credible threats based on individualized information, (2) rested on the best available intelligence, and (3) been subject to thorough interagency legal and policy review. The present Order does not rest on such tailored grounds, but rather on (1) generalized bans, (2) that are not supported by any new intelligence that Respondents have cited or of which amici are aware, and (3) were not vetted through careful interagency legal and policy review.
B. The suspension of refugee admissions is not justified by national security or foreign policy concerns.
The March 6 Order’s 120-day ban on refugee admissions serves no national security or foreign policy purpose. Amici know of no factual basis for Respondents’ claim that refugees pose a particular security threat to the United States that would justify the Order’s categorical bans.
From 1975 to the end of 2015, over three million refugees have been admitted to the United States. According to a recent study, only three have killed people in terrorist attacks on U.S. soil.23 All three were Cuban refugees, who murdered three people in two attacks in the 1970s. Critically, these refugees were admitted and carried out their crimes before the creation of the modern refugee vetting system in 1980.24 No refugee has killed an American in a terrorist attack in the United States since that system was put in place.25 According to the study, over that
23 Nowrasteh Sept. 2016, supra note 11. 24 Id. 25 Id.
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same period, only twenty refugees were convicted of any terrorism-related crimes on U.S. soil at all.26
In fact, refugees already receive the most thorough vetting of any travelers to the United States.27 Refugee candidates are vetted recurrently throughout the resettlement process, as “pending applications continue to be checked against terrorist databases, to ensure new, relevant terrorism information has not come to light.”28 By the time refugees referred by the United Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the United States, they have been reviewed not only by UNHCR but also by the National Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State and the U.S. intelligence community more broadly.29
The refugee vetting process is also reviewed and strengthened on an ongoing basis in response to particular threats.30 For Syrian applicants, the Department of Homeland Security recently added a layer of enhanced review that involves collaboration between the Refugee, Asylum, and International Operations Directorate and the Fraud Detection and National Security
26 Id. (“The chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year”); see also Nowrasteh Jan. 2017, supra note 7. 27 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs, https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm. 28 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/11/20/ infographic-screening-process-refugee-entry-united-states. 29 U.S. Dep’t of State, supra note 28. 30 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015), https://www.uscis.gov/sites/default/files/ USCIS/Refugee%2C%20Asylum%2C%20and%20Int%27l%20Ops/Refugee_Security_Screenin g_Fact_Sheet.pdf.
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Directorate. Among other measures, this review provided additional, intelligence-driven support to refugee adjudicators that U.S. officials could then use to more precisely question refugees during their security interviews.31 Respondents allege no specific information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most important step, additional considerations make the U.S. refugee system difficult for terrorists to exploit. Under current vetting procedures, refugees often wait eighteen to twenty-four months to be cleared for entry into the United States.32 Further, of all refugees determined by the UNHCR to be eligible for resettlement, less than one percent were resettled in any country at all in 2015,33 meaning that a would-be terrorist posing as a refugee has very little chance of being resettled anywhere, let alone the United States. Finally, the UNHCR resettlement program places refugees in dozens of countries, and refugees do not decide where they are resettled or which country accepts them, meaning that the odds of any individual refugee being settled into the United States in particular are exceedingly low. II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS OUR
NATIONAL SECURITY AND FOREIGN POLICY INTERESTS. The March 6 Order’s overreach will do lasting harm to the national security and foreign policy interests of the United States.
31 U.S. Dep't of State, supra note 6; Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv., 4-5 (2016). 32 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016), https://www.state.gov/j/prm/releases/factsheets/2016/254649.htm. 33 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html.
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A. The Order is of unprecedented scope. We know of no case where a President has invoked authority under the Immigration and Nationality Act to suspend admission of such a sweeping class of people. Even after the September 11 attacks, the U.S. government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin or religious affiliation. Across the decades, executive orders under the Immigration and Nationality Act usually have targeted specific government officials,34 undocumented immigrants35 or individuals whose personalized screenings indicated that they posed a national security risk.36 And above all, no example in the modern era even approaches the sheer breadth of this Order, which with one stroke of the pen bans more than 180 million people in six separate countries from traveling to the United States based solely on their national origin. B. The Order will do serious damage to our national security and foreign
policy interests. The Order will harm the interests of the United States in a number of respects.
1. The Order will endanger U.S. troops in the field. The Order will affect interpreters and others who have assisted our troops at great risk to their own lives. While Iraq has been removed from the list of banned countries, the Order halts the entire U.S. Refugee Assistance Program for 120 days for all countries. This pause will affect tens of thousands of individuals who assisted the United States and who are waiting for
34 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996). 35 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981). 36 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).
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admission under the already backlogged “Priority 2” program.3738 The removal of Iraq from the Order, therefore, does not eliminate the effects its citizens – our key partners – will feel. By discouraging future assistance and cooperation from these and other affected military allies and partners, the Order will jeopardize the safety and effectiveness of our troops.
2. The Order will disrupt essential counterterrorism, foreign policy, and national security partnerships.
The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our country’s efforts to address the threat posed by terrorist groups such as ISIL. The Order has already sparked intense international criticism and alienated U.S. allies and partners. Countries in the Middle East expressed disapproval and even threatened and engaged in reciprocity in response to the January 27 Order, jeopardizing years of diplomatic outreach.39 We can certainly anticipate a similar reaction to the current order, if it is permitted to go into effect.
The Order will also endanger U.S. intelligence sources in the field. For up-to-date information, our intelligence officers often rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep
37 The “Priority 2” program provides an alternative to the now closed Special Immigrant Visa program. 38 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center, International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017). 39 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017); The Guardian, UN says Trump’s revised travel ban will worsen plight of refugees (Mar. 7, 2017); Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017).
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Americans safe—and whom our officers had promised to protect.40 Finally, by suspending visas, this Order halts the collection of important intelligence that occurs during visa screening processes, information that can be used to recruit agents and identify regional trends of instability.41
3. The Order will hinder domestic law enforcement efforts. Domestic law enforcement relies heavily on partnerships with American Muslim communities to fight homegrown terrorism.42 One report found that in the years since September 11, 2001, Muslim communities have helped U.S. security officials prevent nearly two out of every five Al-Qaeda plots threatening the United States.43 By alienating MuslimAmerican communities in the United States, the Order will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando. The Order’s disparate impact on Muslim travelers and immigrants also feeds ISIL’s propaganda narrative and sends the wrong message to the Muslim community at home and abroad: that the U.S. government is at war with them based on their religion. Less than a day after President Trump signed the January 27 Order, jihadist groups began citing its contents in recruiting messages online.44 The revised Order may even endanger Christian communities
40 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017). 41 This process is particularly important in countries like Iran and Libya, where internal conflict or lack of diplomatic ties limit on-the-ground intelligence collection. 42 Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016). 43 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post-911-Terrorism-Data.pdf. 44 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017).
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overseas, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war.
4. The Order will have a devastating humanitarian impact. The Order will have a devastating humanitarian impact. First and foremost, the Order will disrupt the travel of men, women and children who have been victimized by actual terrorists. Next, tens of thousands of other travelers today face deep uncertainty about whether they may travel to or from the United States for reasons including medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows the Secretaries of State and Homeland Security to admit travelers from targeted countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. Finally, closing our borders to refugees who otherwise would have had the opportunity to resettle in the United States will keep them in dangerous conditions and shift the burden to overstretched allies who are currently accepting far more than their fair share of refugees.
5. The Order will cause economic damage to American citizens and residents.
Finally, the Order will affect many foreign travelers who annually inject hundreds of billions of dollars into the U.S. economy, supporting well over a million U.S. jobs.45 Since the initial Order was issued, dozens of affected companies have noted the damaging impact the travel ban can be expected to have on strategic economic sectors including defense, technology,
45 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/press-releases/2016/department-ofcommerce-releases-october-travel-tourism-expenditures-121516.asp.
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and medicine.46 About a third of U.S. innovators were born outside the United States, and their
scientific and technological innovations have contributed to making our nation and the world safe.47 The harm caused by the ban to the economic dynamism of our country will carry long-
term negative and serious consequences for our national security.
III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.
The Supreme Court has observed that “[d]epartures from the normal procedural sequence
. . . might afford evidence that improper purposes are playing a role” in government action. Vill.
Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977). What is more, this
evidence cannot be cured by a later-in-time order that preserves the essential features of the first.
See U.S. v. Fordice, 505 U.S. 717 (1992) (holding that Mississippi’s re-classification of its state
colleges and universities in ways that were facially neutral but perpetuated racial segregation
continued to violate Brown v. Board of Education); Vill. Of Arlington Heights, 429 U.S. at 267
(noting that the “specific sequence of events leading up the challenged decision also may shed
some light on the decisionmaker's purposes”).
In this situation, the process that produced the January 27 Order departed from the
traditional national security policy-making process, with little to no consultation or scrutiny
46 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497 (9th Cir. Feb. 9, 2017). 47 Adams Nager, et al., The Demographics of Innovation in the United States, Information Technology & Innovation Foundation 29 (Feb. 2016), http://www2.itif.org/2016-demographicsof-innovation.pdf. Iran’s universities, for example, have produced an “inordinate amount of intellectual talent in computer science and cybersecurity.” These scientists are drawn to universities in the United States, where their research is then used by entities such as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trump-immigration-ban-cybersecurity-iran-protests/.
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across the Departments of State, Justice, Homeland Security or the Intelligence Community. And while further thought no doubt went into the March 6 Order, on its face it seems clear that that order was carefully structured to mimic the old ban as closely as possible. As Justice Thomas explained in U.S. v. Fordice, “if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear – clear enough to presume conclusively – that the State has failed to disprove discriminatory intent.” Fordice, 505 U.S. at 747 Thomas, J., concurring).
In every recent administration, Presidents considering a change to immigration policy have followed an interagency review process that allows security professionals to ensure that all relevant uncertainties are addressed by policy and legal experts, appropriate preparations are made for implementation, and any potential risks are effectively mitigated. Before recommendations are submitted to the President, the National Security Council oversees a legal and policy process that typically includes the following important components: a review by the career professionals in institutions of the U.S. government charged with implementing an order; a review by the career lawyers in those institutions to ensure legality and consistency in interpretation; and a senior policy review across all relevant agencies, including Deputies and Principals at the cabinet level.48
48 This is no less true of executive orders issued at the start of a new presidency. See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act: Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009).
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This practice of interagency deliberation has been followed even—and especially—in
times of national emergency in order to set temporary exclusions or establish criteria for
admission to the United States. In the immediate aftermath of the September 11, 2001 attacks,
when the Bush Administration considered whether the President should invoke 8 U.S.C. §
1182(f) to bar certain immigrants or take other actions to secure the border, officials engaged in consultations across the national security agencies to arrive at a decision.49 The reexamination of the vetting system in 201150 and the security reforms to the Visa Waiver Program in 2015-1651
reflect similar interagency consultation.
The process that produced the January 27 Order departed sharply from this standard
practice. We know of no process underway before January 20, 2017 to change current
immigration vetting procedures. According to extensive reporting, Respondents followed no such process in producing the January 27 Order.52 Nor, apparently, did the White House consult
officials from any of the seven agencies tasked with enforcing immigration laws, much less the
congressional committees and subcommittees that oversee them. There is every indication that
49 Edward Alden, The Closing of the American Border 104-06 (2008); Thomas R. Eldridge, et al., 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks Upon the United States 151-54 (2004); Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001). 50 Jon Finer, supra note 19. 51 See supra notes 21-23 and surrounding text. 52 The Secretary of Homeland Security reportedly received his first full briefing as the President signed the January 27 Order. Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017). The Secretary of Defense was neither consulted during the drafting of the order nor given an opportunity to provide input. Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017). Most State Department officials reportedly first heard of the Order through the media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017).
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that Order received little, if any, advance scrutiny by the Departments of State, Justice, Homeland Security or the intelligence community.53
As telling, the January 27 Order was apparently issued without interagency legal process. In recent history, administrations of both political parties have followed a protocol of submitting proposed Orders to the Attorney General, the Justice Department’s Office of Legal Counsel (“OLC”) and all other agency legal offices involved with enforcing the law.54 Legal review by multiple agencies helps to identify potentially unforeseen legal implications of an order, determines the lawfulness of the proposed action, and analyzes whether the proposed language has established legal meaning that can be interpreted consistently with other laws and regulations. Here, the White House reportedly never asked the Department of Homeland Security for legal review in advance of the Order being promulgated, so “[t]he Department . . . was left making a legal analysis on the order after [President] Trump signed it.”55 Unsurprisingly, the January 27 Order contained numerous ambiguities and inconsistencies that immediately caused confusion, forcing implementing agencies to improvise and the White House to reverse itself at least once.56
Although the White House apparently brought more agencies into the fold in the days leading up to the March 6 Order, whatever process took place after January 27, 2017 plainly was meant to preserve the same structure, substance and purpose of the original flawed executive
53 Customs and border officials reported that their superiors could not provide clear guidance about the new policy. Shear & Nixon, supra note 53; see also Allen & O’Brien, supra note 53 (quoting CBP chief of passenger operations at John F. Kennedy International Airport declaring, “[w]e are as much in the dark as everybody else.”). 54 See, e.g., Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962). 55 Perez et al., supra note 53; Shear & Nixon, supra note 53. 56 Allen & O’Brien, supra note 53; Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017).
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order. Indeed, White House political advisor Stephen Miller admitted that the March 6 Order would reflect “mostly minor technical differences,” and achieve “the same basic policy outcome for the country,” statements that were echoed by other senior officials.57
Ultimately, there continues to be scant evidence that the country-based approach that is maintained in this Order emerged from the considered perspective of national security experts from across multiple affected agencies. In fact, a document that recently surfaced from the Department of Homeland Security shows just the opposite. When DHS officials were asked by the new administration to identify the terrorist threat from the listed countries, they reached two critical conclusions: that citizenship is likely an unreliable indicator of terrorist threat, and that few of the listed countries are home to terrorist groups that threaten the west.58 To this moment, the Administration has yet to explain how the country-based bans established here work effectively to forestall terrorist threats or why there are not more narrowly tailored measures available to address our country's national security concerns.
57 Matthew Nussbaum et al., supra note 5. 58 Citizenship Unlikely, supra note 18.
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CONCLUSION Ours is a nation of immigrants, committed to the faith that we are all equal under the law and that we abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, amici sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, a system that applies no religious tests and that measures individuals by their merits, not by stereotypes of countries or groups. Unjustified blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that amici took oaths to protect. Although our nation was founded by immigrants fleeing religious persecution, the Order discriminates based on religion. Although our Constitution enshrines the principle that all are equal under the law, the Order discriminates on the basis of national origin. And although the United States accepted over four million refugees in the decades after World War II,59 the Order willfully ignores the greatest refugee crisis since that time. Allowing the March 6 Order to take effect would wreak havoc on our nation’s security and deeply held American values and would threaten innocent lives. Blocking the Order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still subjecting travelers to all the rigorous legal vetting processes that are currently in place.
59 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).
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For all of these reasons, amici support the Plaintiffs in seeking to block the March 6

Order from going into effect.

Respectfully Submitted,

________/s/_________

Harold Hongju Koh

Jonathan Freiman (D00322)

Hope Metcalf

Tahlia Townsend (PHV pending)

RULE OF LAW CLINIC

WIGGIN AND DANA LLP

Yale Law School

265 Church Street

127 Wall Street, P.O. Box 208215

P.O. Box 1832

New Haven, CT 06520-8215

New Haven, CT 06508-1832

203-432-4932

203-498-4584

jfreiman@wiggin.com

Counsel for Amici Curiae

 We are grateful to Phil Spector, Danieli Evans, Clare Ryan, and the student members of the Yale Law School Rule of Law Clinic—Benjamin Alter, Colleen Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad, Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg, Tianyi Xin, and Nathaniel Zelinsky—for their contributions to this submission. Yale Law School’s Rule of Law Clinic is organized separately from the school’s Jerome N. Frank Legal Services Organization (“LSO”), a counsel for petitioners in a separate challenge to the original executive order. No counsel authored this brief in whole or in part; no party or party’s counsel contributed money intended to fund preparing or submitting this brief; and no person, other than amici, their members, and counsel, contributed money that was intended to fund preparing or submitting this brief. The views expressed by Yale Law School’s legal clinics are not necessarily those of the Yale Law School.
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Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 30 of 34
APPENDIX: LIST OF AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. John R. Allen served as Special Presidential Envoy for the Global Coalition to Counter ISIL from 2014 to 2015. Previously, he served as Commander of the International Security Assistance Force and U.S. Forces Afghanistan.
3. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
4. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
5. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
6. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.
11. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S.
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Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 31 of 34
Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
13. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
14. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
15. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
16. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
17. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.
18. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.
19. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
20. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
21. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
22. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
23. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.
24. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.
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Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 32 of 34
25. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
26. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
27. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
28. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
29. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
30. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
31. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
32. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
33. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
34. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
35. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
36. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
37. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
c

Case 1:17-cv-00255-TSC Document 70 Filed 04/04/17 Page 33 of 34 38. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011. 39. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department. 40. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
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CERTIFICATE OF SERVICE
I, Jonathan Frieman, hereby certify that on March 27, 2017, the foregoing document was
filed and served through the CM/ECF system.
________/s/_________ Jonathan Freiman (D00322) WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584 jfreiman@wiggin.com
Counsel for Amici Curiae

 
 Case 1:17-cv-00255-TSC Document 71 Filed 04/04/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs, v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants.

Docket No. 17-cv-00255 (TSC) Electronically Filed Hon. Tanya S. Chutkan

BRIEF OF AMICI CURIAE HUMAN RIGHTS FIRST, KIND (KIDS IN NEED OF DEFENSE), AND TAHIRIH JUSTICE CENTER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Andrew M. Lacy Adrienne V. Baxley SIMPSON THACHER & BARTLETT LLP 900 G Street, NW Washington, D.C. 20001 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 alacy@stblaw.com adrienne.baxley@stblaw.com

Alan Turner* SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 aturner@stblaw.com
*Pro hac vice application pending

Counsel for Amici Curiae

April 3, 2017

Case 1:17-cv-00255-TSC Document 71 Filed 04/04/17 Page 2 of 22 CORPORATE DISCLOSURE STATEMENT
Amici are not-for-profit organizations. They have no parent corporations, and no publicly held corporation owns any portion of any of them.
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Case 1:17-cv-00255-TSC Document 71 Filed 04/04/17 Page 3 of 22 TABLE OF CONTENTS Page
INTERESTS OF AMICI CURIAE...................................................................................................1 SUMMARY OF ARGUMENT.......................................................................................................3 ARGUMENT ..................................................................................................................................6
I. THE COURTS SERVE A CRITICAL ROLE IN REVIEWING EXECUTIVE ACTIONS .............................................................................................................................6
II. THE EXECUTIVE ORDER WILL CAUSE IRREPARABLE HARM ............................10 CONCLUSION .............................................................................................................................16
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TABLE OF AUTHORITIES

Page

Cases
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ...................................................................................................8
Aptheker v. Sec’y of State, 378 U.S. 500 (1964).....................................................................................................................7
Aziz v. Trump, — F. Supp. 3d. —, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ...............................................10
Baker v. Carr, 369 U.S. 186 (1962).....................................................................................................................6
Bolling v. Sharpe, 347 U.S. 497 (1954)...................................................................................................................12
Boumediene v. Bush, 553 U.S. 723 (2008).....................................................................................................................9
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ...................................................................................................10
Elrod v. Burns, 427 U.S. 347 (1976)...................................................................................................................10
Ex parte Milligan, 71 U.S. 2 (1866)...........................................................................................................................7
Ex parte Mitsuye Endo, 323 U.S. 283 (1944).....................................................................................................................7
Ex parte Quirin, 317 U.S. 1 (1942).........................................................................................................................7
Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .......................................................................................................8
Galvan v. Press, 347 U.S. 522 (1954).....................................................................................................................7
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...................................................................................................................10
Hawai’i v. Trump, No. 17-00050, 2017 WL 1167383 (D. Haw. Mar. 29, 2017) ....................................................14
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).........................................................................................................................7
INS v. Chadha, 462 U.S. 919 (1983).................................................................................................................6, 7

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Int’l Refugee Assistance Project, No. 17-cv-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ...................................................14
Johnson v. Robison, 415 U.S. 361 (1974).....................................................................................................................9
Lynch v. Donnelly, 465 U.S. 668 (1984)...................................................................................................................11
Marbury v. Madison, 5 U.S. 137 (1803).....................................................................................................................4, 6
McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)...................................................................................................................14
Moore v. City of E. Cleveland, 431 U.S. 494 (1977)...................................................................................................................11
Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d 296 (D.C. Cir. 2014) .....................................................................................................7
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) ...................................................................................................8
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).....................................................................................................................8
Ukrainian-American Bar Ass’n, Inc. v. Baker, 893 F.2d 1374 (D.C. Cir. 1990) ...................................................................................................8
United States v. Robel, 389 U.S. 258 (1967).....................................................................................................................7
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .................................................................................................4, 6
Zadvydas v. Davis, 533 U.S. 678 (2001).....................................................................................................................7
Zemel v. Rusk, 381 U.S. 1 (1965).........................................................................................................................6
Zivotofsky v. Clinton, 566 U.S. 189 (2012).....................................................................................................................6
Statutes 8 U.S.C. § 1152(a)(1)(A)...............................................................................................................10 8 U.S.C. § 1182(f) ...........................................................................................................................9
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INTERESTS OF AMICI CURIAE Human Rights First (formerly known as the Lawyers Committee for Human Rights) has worked since 1978 to promote fundamental human rights and to ensure protection of refugees’ rights, including the right to seek and enjoy asylum. Human Rights First grounds its refugee protection work in the standards set forth in the 1951 Convention Relating to the Status of Refugees (the “Refugee Convention”), the 1967 Protocol Relating to the Status of Refugees (the “1967 Protocol”), the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and other international human rights instruments, and advocates adherence to these standards in the policies, practices, and laws of the United States government. Human Rights First also operates one of the largest pro bono asylum representation programs in the country, providing legal representation without charge to hundreds of indigent asylum applicants each year. Human Rights First is committed to ensuring that all protections granted under the 1951 Refugee Convention and the 1967 Protocol remain available to refugees and asylum seekers in the United States. Kids in Need of Defense (KIND) is a national non-profit organization that works to ensure that no child faces immigration court alone. KIND provides direct representation, as well as working in partnership with law firms, corporate legal departments, law schools, and bar associations that provide pro bono representation, to unaccompanied children in their removal proceedings. KIND advocates for changes in law, policy, and practices to improve the protection of unaccompanied children in the United States. KIND staff and KIND pro bono attorneys seek to ensure that every child in removal proceedings receives the full measure of due process protections that the law affords. Accordingly, KIND respectfully joins this amicus brief,
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in the interest of improving consistency and even-handedness in the treatment of unaccompanied children who come before our immigration courts.
Tahirih Justice Center (“Tahirih”) is a national non-profit that has served courageous individuals fleeing violence since 1997. Through direct services, policy advocacy, and training and education, Tahirih protects immigrant women and girls and promotes a world where women and girls enjoy equality and live in safety and dignity. In four offices nationwide, Tahirih serves immigrant women and girls who have rejected violence and who seek safety for themselves and their children, but who face serious obstacles to justice, including language barriers, lack of resources, and a complex immigration system.
All amici have a direct interest in the outcome of this case.1
1 Plaintiffs have consented to the filing of this brief, and Defendants have taken no position. No party’s counsel authored any part of this brief, and no party or person other than amici, their members, or their counsel made any monetary contribution intended to fund preparation or submission of this brief.
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SUMMARY OF ARGUMENT As President George Washington wrote to a religious minority community containing many immigrants in 1790, “the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance.”2 From as early as the arrival of the Pilgrims, the Quakers, the Baptists and the Anabaptists, this land has been a haven for immigrants, regardless of their faith and country of birth. Freedom of religion and freedom from the establishment of religion are, of course, enshrined in our First Amendment. The President’s latest Executive Order, issued on March 6, 2017 and entitled “Protecting The Nation From Foreign Terrorist Entry Into The United States” (the “Executive Order”), hews away at these foundations of our nation, baselessly labelling more than one hundred and eighty million citizens of Iran, Sudan, Syria, Somalia, Libya, and Yemen as terrorist threats, and banning them from traveling here based solely on their national origin.3 That the targeted countries are all predominantly Muslim nations,4 and that the President repeatedly campaigned on a promise to ban the entry of Muslims, suggests that the Order was motivated at least in part by an unconstitutional disfavoring of Islam. This is not who we are as a country, and this is not allowed by our Constitution. The Executive Order also violates the Immigration and Nationality
2 From George Washington to the Hebrew Congregation in Newport, Rhode Island, 18 August 1790, National Archives, https://founders.archives.gov/documents/Washington/05-06-02-0135. 3 Country Comparison :: Population, U.S. Central Intelligence Agency World Factbook, https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (citing country populations). 4 The six targeted countries are all at least 90% Muslim, and some are 99% Muslim. Muslim Population by Country, Pew Research Center (Jan. 27, 2011), http://www.pewforum.org/2011/01/27/table-muslim-population-by-country; About Sudan, United Nations Development Programme, http://www.sd.undp.org/content/sudan/en/home/countryinfo.html.
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Act’s prohibition on discrimination on the basis of national origin, for the reasons set forth in Plaintiffs’ motion for a preliminary injunction.
Contrary to the Government’s arguments to this Court and others that the President’s exercise of powers concerning immigration and national security is unreviewable,5 and assertions by the President’s senior policy advisor that those powers “will not be questioned,”6 this Court is indeed empowered to review and determine the legality of the Executive Order. The President’s powers are derived from and circumscribed by the Constitution and delegated congressional authority. Because we live in a nation “of laws, and not of men,” Marbury v. Madison, 5 U.S. 137, 163 (1803), it is the responsibility of federal courts to determine when that authority has been exceeded. Judicial review of executive action is part of the “fundamental structure of our constitutional democracy,” Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017) (per curiam), and now, more than ever, it is important to reaffirm this vital check and balance. This Court has the authority—and, in fact, the duty—to review the President’s Executive Order for compliance with the Constitution and federal law.
As organizations committed to serving and advocating on behalf of the nation’s immigrant communities, amici urge this Court to recognize the irreparable harm that those communities and others face under the Executive Order. Every U.S. resident who has family
5 See, e.g., Defs. Opp. at 25, ECF No. 50 (asserting that Plaintiffs’ claims are barred by the doctrine of consular nonreviewability), 32 (asserting that the Executive Order is not reviewable under the APA). See also Emergency Mot. Under Cir. Rule 27-3 for Admin. Stay & Mot. for Stay Pending Appeal at 2, Washington v. Trump, 847 F.3d 1151 (9th Cir. Feb. 4, 2017) (No. 1735105), ECF No. 14. 6 Aaron Blake, Stephen Miller’s authoritarian declaration: Trump’s national security actions ‘will not be questioned,’ Wash. Post, Feb. 13, 2017, https://www.washingtonpost.com/news/thefix/wp/2017/02/13/stephen-millers-audacious-controversial-declaration-trumps-nationalsecurity-actions-will-not-be-questioned (reporting televised public statements by President Trump’s senior policy adviser, Stephen Miller, regarding the Executive Order).
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members in one of the targeted countries will be deprived of visits from those family members, as well as the ability to sponsor derivative immigrant visas. Our nation’s colleges and universities will be unable to admit students or recruit faculty from the targeted countries, hindering their ability to foster and maintain a rich, diverse, and inclusive educational environment. And employers in the public and private sectors will be unable to hire workers from the targeted countries, to the detriment of public institutions and businesses alike.
Aside from these concrete and tangible harms, the Executive Order works another less tangible but no less insidious harm: the marginalization of entire communities based on promulgation by executive action of the false notion that nationals of the six targeted countries are “the ‘bad’”7 and must be excluded on a blanket basis in the purported interests of national security. The security rationale advanced by the Government is paper-thin, is belied by the President’s own actions in delaying the signing of the new Executive Order (reportedly for publicity reasons), and cannot mask the religious animus and discriminatory intent that motivated this Executive Order and its predecessor. The speculative harms advanced by the Government as the basis for the new Executive Order—which itself seeks to upend the status quo—are far outweighed by the immediate harms that would be caused by implementation of the Order. Amici accordingly urge this Court to enjoin implementation of the Executive Order until its legality and constitutionality can be resolved on the merits.
7 See Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017, 8:31 AM), https://goo.gl/FAEDTd.
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ARGUMENT I. THE COURTS SERVE A CRITICAL ROLE IN REVIEWING EXECUTIVE
ACTIONS The judiciary’s foremost obligation in our democratic system is to act as a check on the unconstitutional excesses of the political branches. Far from commanding that presidential directives “will not be questioned,” more than two centuries of precedent instruct that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803) (emphasis added). Decisions of the Supreme Court and of this Circuit emphasize that this judicial duty does not dissipate simply because the challenged actions relate to immigration or national security, or even where the legislative branch has delegated significant discretion to the executive. As the Ninth Circuit held in rejecting the Government’s argument that the first Executive Order was “unreviewable,” “[t]here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017) (per curiam). Executive action does not become immune from review where the President claims a national security rationale. “[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. 186, 211 (1962). The Supreme Court recently reaffirmed that resolving legal challenges to the constitutional authority of one of the three branches of our federal government “is a familiar judicial exercise,” which cannot be avoided “merely ‘because the issues have political implications.’” Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)); see also Zemel v. Rusk, 381 U.S. 1, 17 (1965) (denying that the President has “totally unrestricted freedom of choice” where a statute deals with foreign relations); Aptheker v. Sec’y of State, 378
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U.S. 500 (1964) (upholding constitutional rights despite national security concerns); Ex parte Mitsuye Endo, 323 U.S. 283 (1944) (same).
While courts properly accord substantial deference to the political branches where matters of national security are concerned, see, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010), complete deference would be an impermissible abdication of judicial authority. Cf. Ex parte Quirin, 317 U.S. 1, 19 (1942) (“[I]n time of war as well as in time of peace, [courts are] to preserve unimpaired the constitutional safeguards of civil liberty . . . .”); Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”). Consistent with these Supreme Court rulings, this Circuit’s precedent holds that a court must not “automatically decline to adjudicate legal questions if they may implicate foreign policy or national security.” Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d 296, 313 (D.C. Cir. 2014). As the Supreme Court has noted, “[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.” United States v. Robel, 389 U.S. 258, 264 (1967).
The judicial duty to review the constitutionality of the executive’s actions similarly does not disappear because the policy under consideration deals with immigration. Even in the realm of immigration the President and Congress are “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001); see also Chadha, 462 U.S. at 940-41 (courts can review “whether Congress has chosen a constitutionally permissible means of implementing” its power over the regulation of aliens); Galvan v. Press, 347 U.S. 522, 531 (1954) (“In the enforcement of [immigration] policies, the Executive Branch of the Government must respect the procedural safeguards of due process.”). The D.C. Circuit has squarely held that even when it
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comes to the President’s “broad discretion over the admission and exclusion of aliens,” “[i]t is the duty of the courts . . . to say where . . . statutory and constitutional boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987). Deference to the political branches in the immigration context must not amount to a “complete judicial abnegation of jurisdiction.” Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 909 (D.C. Cir. 1996) (Rogers, J., dissenting); see also Ukrainian-American Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1380 (D.C. Cir. 1990) (reviewing constitutional challenge to asylum procedures because “a claim [that] implicates important governmental policies . . . does not necessarily mean that the political question doctrine precludes the judiciary from hearing it”).
In their opposition to Plaintiffs’ preliminary injunction motion, Defendants assert that Plaintiffs’ claims are barred by the doctrine of consular nonreviewability, which accords deference to consular officers’ decisions to issue or withhold issuance of visas to individual applicants.8 The Government’s cases concern the availability of judicial review of “the determination of the political branch of the Government to exclude a given alien.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (quoting U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)) (emphasis added). In Shaughnessy, the Attorney General possessed “confidential information” specific to the excluded alien. 338 U.S. at 544. But that doctrine relating to individual immigration claims provides no shelter from constitutional or statutory review of a generalized large-scale attempt to bar groups of immigrants and refugees based on religion and/or national origin. Here, the Government does not claim to possess information justifying the exclusion of any given alien(s), but rather seeks
8 Defs. Opp. at 25-26, ECF No. 50.
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to preclude all citizens from the six targeted countries from entering the U.S. The consular nonreviewability doctrine does not bar this Court’s review of the Executive Order.
Finally, even where, as here, Congress has delegated a measure of discretion to the President, that discretion is not unchecked. Both congressional and executive action are bounded by the requirements of the Constitution; the legislature cannot write the executive a blank check to operate free of constitutional strictures. The Supreme Court has held that the political branches may not “switch the Constitution on or off at will.” Boumediene v. Bush, 553 U.S. 723, 765 (2008).
Here, the President relies on 8 U.S.C. § 1182(f)9 as the legal basis for the Executive Order. But that statute’s grant of discretion to the President cannot plausibly be read to strip the courts of jurisdiction to review the President’s actions. The Supreme Court has required “‘clear and convincing’ evidence of congressional intent . . . before a statute will be construed to restrict access to judicial review.” Johnson v. Robison, 415 U.S. 361, 373-74 (1974). Judicial review can be precluded only by “the clearest evocation of congressional intent to proscribe judicial review of constitutional claims” in light of the “constitutional dangers inherent in denying a forum in which to argue that government action has injured interests that are protected by the Constitution.” Ralls, 758 F.3d at 308-09. There is no such evidence here. To the contrary, the Immigration and Nationality Act’s subsequent prohibition of immigration determinations based on nationality and other criteria instead squarely preclude any conclusion that the legislature intended to shield such discriminatory actions from review. 8 U.S.C. §
9 Section 1182(f) provides that “[w]henever 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.”
9

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1152(a)(1)(A). As another district court recently held in a case concerning the first Executive Order, “[m]aximum power does not mean absolute power.” Aziz v. Trump, — F. Supp. 3d. —, 2017 WL 580855, at *6 (E.D. Va. Feb. 13, 2017) (granting preliminary injunction). Even where the President acts at the pinnacle of his power, courts still have a role to play in safeguarding individual rights. The Constitution “most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion).
In short, this Court has the authority, and indeed the duty, to review the constitutionality and legality of this Executive Order. II. THE EXECUTIVE ORDER WILL CAUSE IRREPARABLE HARM
Amici seek to strengthen diversity and promote justice and equality. Connected by our common humanity, amici believe that protection of the interests of individuals and organizations affected by the Executive Order reinforces the broader interests of American society. The individual and organizational harms faced by these groups are irreparable, weighing in favor of a preliminary injunction.
The harms caused by the deprivation of a constitutional right, no matter how brief the duration, are by their very nature irreparable. Unlike pecuniary harms, constitutional harms generally cannot be made whole by post hoc compensation. That is particularly true for harms to First Amendment rights. As the Supreme Court has recognized, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). The D.C. Circuit recognizes that Elrod applies to Establishment Clause violations. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006) (“[A] party alleging a violation of the
10

Case 1:17-cv-00255-TSC Document 71 Filed 04/04/17 Page 16 of 22
Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.”).10 Here, the Executive Order threatens the constitutionally protected rights to be free of a government-established religion, to equal protection of the law, to international travel, and to family integrity. As Plaintiffs have eloquently described, these harms particularly impact the Iranian-American community and the Iranian nationals who held nearly half of the estimated 90,000 visas issued in 2015 to nationals of the seven countries targeted by the first Executive Order, and thus are likely to comprise a large proportion of the individuals whose ability to obtain visas would be affected by implementation of the March 6, 2017 Executive Order. Am. Compl. ¶ 127, ECF No. 34.
As amici know from their work with immigrants and refugees, U.S. citizens and lawful permanent residents (“LPRs”) with family members in the six targeted countries, including Iran, will suffer concrete harms to their recognized liberty interest in maintaining familial relationships. See Moore v. City of E. Cleveland, 431 U.S. 494 (1977). “[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Id. at 503. Yet under the Executive Order’s discriminatory nationality-based test, U.S. citizens and LPRs will be unable to receive visits from loved ones who live in the banned countries or to sponsor family members from those countries for lawful permanent residence in the United States. The Executive Order will separate spouses
10 See also Chaplaincy of Full Gospel Churches, 454 F.3d at 302 (“Where, as here, the charge is one of official preference of one religion over another, such governmental endorsement ‘sends a message to nonadherents [of the favored denomination] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’”) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)).
11

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and fiancés across continents,11 deprive family members of time with ill or elderly relatives,12 and force overseas visa applicants to miss births, weddings, funerals, and other important family events.13 Affected individuals will be forced to choose between career obligations in the United States and family members in the banned countries.14 By interfering with familial relations on the basis of national origin, the Executive Order violates the constitutional rights of these U.S. citizens and LPRs to the equal protection guarantee inherent in the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954).
Immigrants and visitors from the targeted countries contribute to local and national life in numerous ways that will be stymied by the Executive Order. For instance, public and private colleges and universities recruit students, permanent faculty, and visiting faculty from the targeted countries.15 The Executive Order will prevent visa applicants from the banned countries from studying or teaching at U.S. universities, irrevocably damaging their personal and professional lives and harming our educational institutions, not only in the District of Columbia, but throughout the country.16 By way of further example, recent research by economists affiliated with Harvard and MIT shows that, across the United States, “14 million doctors’ appointments are provided each year by physicians” from the six affected countries.17
11 See, e.g., Prelim. Inj. Mot. Ex. 7 (Decl. of Jane Doe #1); Ex. 11 (Decl. of Jane Doe #10), ECF No. 35-2. 12 See, e.g., Prelim. Inj. Mot. Ex. 6 (Decl. of Shiva Hissong), ECF No. 35-2. 13 See, e.g., Prelim. Inj. Mot. Ex. 14 (Decl. of Jane Doe #13), ECF No. 35-2. 14 See, e.g., Prelim. Inj. Mot. Ex. 16B (Supp. Decl. of John Doe #3), ECF No. 35-2. 15 See, e.g., Prelim. Inj. Mot. Ex. 12 (Decl. of Jane Doe #11), ECF No. 35-2. 16 For example, according to the Department of State, thousands of Iranian students study in the United States each year. Study in the U.S.A., U.S. Virtual Embassy Iran, https://ir.usembassy.gov/education-culture/study-usa/. See also Am. Compl. ¶ 128, ECF No. 34. 17 The Immigrant Doctors Project, https://www.immigrantdoctors.org (analyzing statistics from Doximity, an online networking site for doctors that assembled this data from a variety of
12

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Preventing doctors from these countries from coming to the United States, and making it harder for those already here to stay, such as by preventing their family members from visiting or joining them here, will adversely impact medical institutions and curtail the medical care available to the citizens of the District of Columbia and the 50 U.S. states.18
Despite the chaos following the first travel ban, and the significant upheaval inherent in the second, the Government claims that the Executive Order “would not upset the status quo.” Defs. Opp. at 43, ECF No. 50. It also points to the waiver provision as a cure-all for any potential upheaval. Id. However, the case-by-case and highly discretionary waiver provisions in Sections 3(c) and 6(c) of the Executive Order cannot and do not mitigate the harms created by an order premised on religious and national discrimination. And the “waiver as a cure-all” argument is even more suspect since no governmental agency has yet provided guidelines for applying for or obtaining a waiver,19 a process that will impose indefinite delays, additional costs, and uncertain outcomes for affected individuals and their families.20
Singling out and banning nationals from the six predominantly Muslim targeted countries, as the Executive Order does, causes further harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States. The repeated calls by the President and his advisors for a “total and complete shutdown of Muslims entering the
sources, including the American Board of Medical Specialties, specialty societies, state licensing boards, and collaborating hospitals and medical schools). 18 See, e.g., Prelim. Inj. Mot. Ex. 16A (Decl. of John Doe #3), ECF No. 35-2. 19 See Am. Compl. ¶¶ 115-17, 141, ECF No. 34. 20 See, e.g., Prelim. Inj. Mot. Ex. 2 (Decl. of IABA) ¶¶ 36-39, ECF No. 35-2.
13

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United States”21 and for the implementation of a “Muslim ban”22 are the raison d’être of this Executive Order. That the Government has dressed the revised Executive Order in new clothing after its first effort was enjoined by other courts does not nullify the President’s prior statements or their relevance to this Court’s inquiry as to whether that revised order passes legal muster. Indeed, other courts that have already preliminarily enjoined this Executive Order have cited the “religious animus, invective, and obvious pretext” paving the path to issuance of this Executive Order and its predecessor. See Hawai’i v. Trump, No. 17-00050, 2017 WL 1167383, at *6 (D. Haw. Mar. 29, 2017) (considering evidence of purpose beyond the face of this Executive Order because “[t]he Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has”), appeal docketed, No. 17-15589 (9th Cir. Mar. 30, 2017); see also Int’l Refugee Assistance Project, No. 17-cv-0361, 2017 WL 1018235, at *14 (D. Md. Mar. 16, 2017) (“Defendants have cited no authority concluding that a court assessing purpose under the Establishment Clause may consider only statements made by government employees at the time that they were government employees. Simply because a decisionmaker made the statements during a campaign does not wipe them from the ‘reasonable memory’ of a ‘reasonable observer.’”) (quoting McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005)), appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017). Moreover, as revealed by a senior policy advisor to the President, the revised Executive Order still has “the same basic policy outcome for the country” as the first Executive
21 Press Release, Donald J. Trump for President, Inc., Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration. 22 Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally,’ Wash. Post, Jan. 29, 2017.
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Case 1:17-cv-00255-TSC Document 71 Filed 04/04/17 Page 20 of 22
Order.23 This relentless anti-Muslim drumbeat, coupled with the Executive Order itself, have
made immigrants and Muslim citizens justifiably fearful. Against the backdrop of the recent rise in hate crimes against Muslims in the United States,24 the Executive Order amplifies the
sense of persecution that citizens and immigrants of Muslim faith suffer. As organizations that
work with immigrants and refugees, amici can confirm that such marginalization makes our
country less safe, since those who are marginalized and fearful are less likely to cooperate with
law enforcement.
Further, the Executive Order’s suspension of the U.S. Refugee Admissions Program
(“USRAP”) will have catastrophic consequences for innumerable individuals and families
fleeing war, violence, and political or religious persecution. In the words of the United Nations
High Commissioner for Refugees, the Executive Order will “compound the anguish” for people “who remain in urgent need of life-saving assistance and protection.”25 Individuals and
families fleeing political or religious persecution in the six targeted countries are in a precarious
23 Miller: New order will be responsive to the judicial ruling; Rep. Ron DeSantis: Congress has gotten off to a slow start (Fox News television broadcast Feb. 21, 2017), transcript available at http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-responsive-to-judicialruling-rep-ron-desantis/. 24 See, e.g., Matt Zapotosky, Hate crimes against Muslims hit highest mark since 2001, Wash. Post, Nov. 14, 2016; Albert Samaha and Talal Ansari, Four Mosques Have Burned in Seven Weeks – Leaving Many Muslims and Advocates Stunned, BuzzfeedNews (Feb. 28, 2017), https://www.buzzfeed.com/albertsamaha/four-mosques-burn-as-2017begins?utm_term=.rhx3bJRw6#.wcxEQDMKP; David Neiwert, Is Kansas’ ‘Climate of Racial Intolerance’ Fueled by Anti-Muslim Political Rhetoric?, Southern Poverty Law Center (Mar. 2, 2017), https://www.splcenter.org/hatewatch/2017/03/02/kansas%E2%80%99%E2%80%98climateracial-intolerance%E2%80%99-fueled-anti-muslim-political-rhetoric. 25 Press Release, UNHCR, UNHCR underscores humanitarian imperative for refugees as new U.S. rules announced (Mar. 6, 2017), http://www.unhcr.org/enus/news/press/2017/3/58bdd37e4/unhcr-underscores-humanitarian-imperative-refugees-newrules-announced.html.
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state of limbo.26 And, as seen with the January 27, 2017 Executive Order, the March 6, 2017 Executive Order will have follow-on effects on other refugee programs. For example, in the days after issuance of the January 27 Executive Order, the Government abruptly canceled the long-standing U.S. Lautenberg Program, through which Iranian Jews, Christians, and Bahá’ís fleeing persecution as religious minorities were offered visa interviews by U.S. immigration officials in Austria.27
These and other harms that would be caused by implementation and enforcement of the Executive Order are not fleeting. People’s lives will be affected in myriad ways that cannot be undone. Amici accordingly urge this Court to recognize these harms when considering entry of the preliminary injunction Plaintiffs request.
CONCLUSION For the foregoing reasons, as well as those set forth in Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction, amici respectfully support Plaintiffs’ request that the Court grant a preliminary injunction.
26 See, e.g., Prelim. Inj. Mot. Ex. 1 (Decl. of Pars) ¶ 38; Ex. 9 (Decl. of Jane Doe #8); Ex. 10 (Decl. of Jane Doe #9); Ex. 18B (Supp. Decl. of John Doe #7); Ex. 19B (Supp. Decl. of John Doe #8), ECF No. 35-2. 27 Josephine Huetlin, Iranian Jews, Christians, and Baha’i Stuck in Iran, The Daily Beast (Jan. 29, 2017), http://www.thedailybeast.com/articles/2017/01/29/iranian-jews-christians-and-baha-istuck-in-iran.html.
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Dated: Washington, D.C. April 3, 2017

Respectfully submitted,
/s/ Andrew M. Lacy Andrew M. Lacy Adrienne V. Baxley SIMPSON THACHER & BARTLETT LLP 900 G Street, NW Washington, D.C. 20001 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 alacy@stblaw.com adrienne.baxley@stblaw.com
Alan Turner* SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 aturner@stblaw.com
*Pro hac vice application pending
Counsel for Amici Curiae Human Rights First, KIND (Kids in Need of Defense), and Tahirih Justice Center

17

 
 Case 1:17-cv-00255-TSC Document 84 Filed 05/11/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PARS EQUALITY CENTER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants.

)

)

UNIVERSAL MUSLIM ASSOCIATION )

OF AMERICA, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants.

)

)

Case No. 17-cv-0255 (TSC) Case No. 17-cv-0537 (TSC)

ORDER

Plaintiffs in two related cases challenge the President’s Executive Order No. 13,780

(“Second Executive Order”) and in both cases have moved for a preliminary injunction. (Pars

ECF No. 35; UMAA ECF No 11). The court heard the arguments of counsel at the combined

hearing on April 21, 2017. Following the hearing, the court ordered supplemental briefing on the

need for a nationwide injunction, particularly as to Sections 2 and 6 of the Second Executive Order, given that these sections of the order have already been enjoined by other courts.1

1 See Hawai‘i v. Trump, --- F. Supp. 3d ----, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (issuing temporary restraining order as to Sections 2 and 6); Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ----, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (preliminarily enjoining Section 2(c)); Hawai‘i v. Trump, --- F. Supp. 3d ----, 2017 WL 1167383 (D. Haw. Mar. 29, 2017) (converting TRO to a preliminary injunction).
1

Case 1:17-cv-00255-TSC Document 84 Filed 05/11/17 Page 2 of 2
Upon consideration of the parties’ submissions, the court is inclined to agree with Plaintiffs that they are likely to succeed on the merits of their claims with respect to Sections 2 and 6 of the Second Executive Order. However, the court recognizes that it must additionally find that Plaintiffs face imminent and certain irreparable harm in order to grant a preliminary injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The existence of two other nationwide injunctions temporarily casts uncertainty on the issue of whether the harms Plaintiffs allege are actually imminent or certain. Because both existing preliminary injunctions are actively being considered on appeal by the Fourth and Ninth Circuits this month and the continued existence of these injunctions will directly impact this court’s analysis, the court finds that the most appropriate course of action is to temporarily stay resolution of the Plaintiffs’ motions pending the outcome of the current appeals. In the event that both existing injunctions are overturned, this court is prepared to issue a ruling without delay.
On April 4, 2017, this court issued a Minute Order directing Defendants to file their Answer or Motion to Dismiss within fifteen days of this court’s decision on the preliminary injunction motions. In order to avoid undue delay in this litigation, the court now orders that this time period shall commence with this filing of today’s Order. Accordingly, Defendants’ Answers or Motions to Dismiss are due by May 26, 2017, Plaintiffs’ Oppositions to any motions are due by June 16, 2017, and Defendants’ Replies are due by June 26, 2017.

Date: May 11, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

2

 
 Case 1:17-cv-00255-TSC Document 91 Filed 06/20/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PARS EQUALITY CENTER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants.

)

)

UNIVERSAL MUSLIM ASSOCIATION )

OF AMERICA, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants.

)

)

Case No. 17-cv-0255 (TSC) Case No. 17-cv-0537 (TSC)

ORDER

Before the court are Defendants’ motions to stay proceedings pending the outcome of the

Government’s petition for certiorari and request for expedited review in International Refugee

Assistance Project v. Trump. (Pars ECF No. 87; UMAA ECF No. 51). Plaintiffs in both cases

oppose staying the proceedings. (Pars ECF No. 88; UMAA ECF No. 52). After careful

consideration of the parties’ arguments, and for the reasons stated below, the court finds that a

stay is warranted and GRANTS the motions.

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. N. American Co., 299 U.S. 248, 254 (1936). Therefore,

“[a] trial court has broad discretion to stay all proceedings in an action pending the resolution of

1

Case 1:17-cv-00255-TSC Document 91 Filed 06/20/17 Page 2 of 2

independent proceedings elsewhere.” Canady v. Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 74 (D.D.C. 2002) (citing Landis, 299 U.S. at 254). However, a court may not “order[] a stay ‘of indefinite duration in the absence of a pressing need.’” Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 731 (D.C. Cir. 2012) (quoting Landis, 299 U.S. at 255).
In both of these cases, 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. Most significant to the court in making this determination is the substantial overlap between the legal issues present here and those that the Supreme Court may itself soon decide. Importantly, this stay is not indefinite, but instead will last only until the Supreme Court reaches a final decision either by denying the Government’s petition or by issuing a ruling on the merits. Though Plaintiffs argue that they may be harmed by a stay of proceedings, the court notes that the operative sections of the Executive Order remain preliminarily enjoined following the recent decisions from the Fourth and Ninth Circuits. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017); Hawai‘i v. Trump, --F.3d ----, 2017 WL 2529640 (9th Cir. June 12, 2017).
Within seven days of the Supreme Court’s final decision—either denial of the petition or ruling on the merits—the parties shall jointly submit a proposed schedule for proceeding with these cases. In light of this court’s decision to stay proceedings in both of these cases, the court also hereby denies without prejudice the parties’ pending motions for preliminary injunctions. If circumstances change prior to the Supreme Court issuing its final decision, any party may file a motion to lift the stay and may then re-file a motion for a preliminary injunction.

Date: June 20, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
2

 
 Case 1:17-cv-00255-TSC Document 101 Filed 07/19/17 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

)

)

)

)

)

)

Case No. 17-cv-0255 (TSC)

)

)

)

)

)

)

ORDER

Plaintiffs filed this suit in February seeking a preliminary injunction prohibiting

implementation of Executive Order No. 13,769, and subsequently of Executive Order No.

13,780, both of which restricted entry to the United States of certain foreign nationals. After a

combined motions hearing on April 21, 2017, in this case and in Universal Muslim Association

of America, Inc., v. Donald Trump, No. 17-cv-537, the court stayed both preliminary injunction

requests, pending appeals in the Fourth and Ninth Circuits of injunctions entered by courts in

those circuits of all or parts of E.O. No. 13,780.

While this court’s most recent stay was in effect, the government filed a petition for writ

of certiorari with the Supreme Court seeking review of the Fourth Circuit’s decision in Trump v.

International Refugee Assistance Project (IRAP), 857 F.3d 554 (4th Cir. May 25, 2017), and

asked this court to stay the case until the Supreme Court’s resolution of the certiorari petition,

and, if certiorari were granted, until the Supreme Court’s ultimate decision on the merits. (ECF

No. 87).

The court granted the motion to stay proceedings in both cases, finding a “substantial

overlap between the legal issues present here and those that the Supreme Court may itself soon

1

Case 1:17-cv-00255-TSC Document 101 Filed 07/19/17 Page 2 of 5
decide.” (Order Granting Motion to Stay, ECF No. 91). The court ordered the parties to submit a proposed schedule for proceeding with the cases within seven days of the Supreme Court’s final decision either denying the certiorari petition or ruling on the merits, and indicated that “[i]f circumstances change prior to the Supreme Court issuing its final decision, any party may file a motion to lift the stay and may then re-file a motion for a preliminary injunction.” (Id.).
On June 26, 2017, the Supreme Court granted the government’s petitions for certiorari in the Fourth and Ninth Circuit cases and granted in part the government’s motion to stay the preliminary injunctions at issue pending resolution of the merits after the Court’s hearing argument during the October 2017 term. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017). The Court granted the stay of section 2(c) of E.O. No. 13,780 “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” and left the injunctions in place “with respect to respondents and those similarly situated,” who had relationships with people or entities in the United States “whose rights might be affected if those foreign nationals were excluded.” Id. at 2087. The Court reasoned that the lower courts erred when enjoining section 2(c) with respect to “foreign nationals abroad who have no connection to the United States at all,” because “[d]enying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national,” and “the courts below did not conclude that exclusion . . . would impose any legally relevant hardship on the foreign national himself.” Id. at 2088. In addition, the Court noted that “the Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” Id. The Court concluded, “[t]o prevent the Government from pursuing [the objective of preserving national security] by enforcing § 2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.” Id.
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Case 1:17-cv-00255-TSC Document 101 Filed 07/19/17 Page 3 of 5
Two days after the Supreme Court’s order, Plaintiffs in Pars Equality Center filed a motion asking this court to lift the stay and for a temporary restraining order or preliminary injunction. Finding the standards for a temporary restraining order were not met, the court invited the government to respond, and the motions for a stay and preliminary injunction are now before the court.
Plaintiffs state that “at least two individual plaintiffs who seek refuge from persecution— Jane Does #8 and #9—no longer have [the protection of the nationwide preliminary injunctions entered by other courts], and they face imminent, dire, and irreparable injury.” (Pls. Mem. in Supp. Mot. to Lift Stay at 1, ECF No. 92-1). Jane Does #8 and #9 are Iranian women currently residing in Turkey and seeking refugee admission to the United States to escape sexual orientation persecution in Iran. (Id. Exs. 2, 3). Plaintiffs argue that because “none of the plaintiffs in the cases before the Supreme Court were visa or refugee applicants lacking a ‘credible claim to a bona fide relationship’ to a U.S. person or entity, the lower courts could not properly determine and weigh in [on] the balance of interests the hardships such applicants will suffer if the Executive Order is enforced against them.” (Id. at 2).
Plaintiffs interpret the Supreme Court’s order to have “not rule[d] out” that the interests of individuals without a bona fide relationship to a person or entity in the United States “could have a cognizable interest in some circumstances,” and claim that the Court instead “reasoned that in the cases before the Court, those interests were ‘less concrete.’” (Id.)
Plaintiffs suggest this court could enjoin the government from implementing E.O. No. 13,780 with respect to the two women and “others similarly situated” without running afoul of the Supreme Court’s order. This court disagrees. Plaintiffs argue that “the Court was not able actually to balance the competing interests” of refugee applicants with no relationship to the United States with the government’s national security interests “because no party properly represented the interests of those groups.” (Id. at 4). But this court finds Plaintiffs’ argument
3

Case 1:17-cv-00255-TSC Document 101 Filed 07/19/17 Page 4 of 5
foreclosed by the plain language of the Supreme Court’s Order. The Court addressed the injunction upheld by the Ninth Circuit, which extended “to bar enforcement of the § 6(a) suspension of refugee admissions and the § 6(b) refugee cap,” and found the same equitable balance that applied to section 2(c) also applied to section 6(a) and (b). Trump v. IRAP, 137 S. Ct. at 2089. The Court wrote:
An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security. Id. This language makes clear that the Court did balance the equities with regard to refugees lacking a connection to the United States, such as Jane Does #8 and #9, and concluded that such individuals were not entitled to preliminary relief at this time. This court therefore has no authority to grant the relief requested. Plaintiffs argue that the Supreme Court’s Order applied only to the “individuals or organizations before the Court,” and “because the hardships of refugees who lack a bona fide connection with a U.S. person or entity was not litigated before the lower courts, the Supreme Court found it improper to include them in the equitable balance.” (Pls. Reply at 1, 2). But the Court’s language belies such an inference or conclusion. The Court considered the Government’s stay request as to the entire Executive Order, and determined that the Order would remain enjoined as to some groups of individuals but the injunctions would be stayed as to other groups of individuals. The Court did not leave any group of individuals unaddressed, and could not have, because its decision on the stay request established the status quo between the date of its Order and the date of its ultimate ruling on the merits.1 The Court’s categorical
1 As for Plaintiffs’ references to the interests of the organizational plaintiffs in this case, those interests do not provide this court any more opportunity to contravene the Supreme Court’s Order than do the individual plaintiffs. Regardless of whether the organizational plaintiffs have
4

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determinations did not rely only on the specific record in the cases before it, but rather also on its own equitable judgment, Trump v. IRAP, 137 S. Ct. at 2087, which this court will not disturb.
For the reasons stated, the motion to lift the stay and for a preliminary injunction is hereby DENIED.2

Date: July 19, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

standing, this court has determined that the Supreme Court’s Order definitely resolves the matter of the state of enforcement of Executive Order No. 13,780 between the date of the Court’s Order and the date of the Court’s ultimate decision on the merits. Plaintiffs’ arguments about the hardships faced by the organizational plaintiffs and the absence of any such hardships in the cases presented before the Supreme Court do not alter this conclusion.
2 As for Plaintiffs’ final argument that Jane Does #8 and #9 in fact have bona fide relationships with entities in the United States (Pls. Reply at 3 n.2), the Executive Order would in that case remain enjoined with respect to them and this court can order no additional relief.
5

 
 Case 1:17-cv-00255-TSC Document 105 Filed 10/12/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER et al., Plaintiffs, v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. 1:17-cv-255 Hon. Tanya S. Chutkan

ORDER
The Court, having considered Plaintiffs’ Motion to Lift Stay and for Related Relief
(“Motion”) (ECF No. 103), and finding that good cause appears, orders as follows:
The Motion is hereby GRANTED in part and DENIED in part.
1. The stay is lifted.
2. The Plaintiffs may file the Second Amended Complaint.
3. The Plaintiffs may re-file their motion for preliminary injunction forthwith.
4. The court finds that the expedited schedule for a preliminary injunction provided for in Local Civil Rule 65.1 is appropriate in this case. Accordingly:
a) Defendants’ opposition to the motion for preliminary injunction is due on or before October 19, 2017.
b) The Court will hear argument on the motion for preliminary injunction at 9:30 a.m. on November 2, 2017.
IT IS SO ORDERED. Dated: October 12, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

 
 Case 1:17-cv-00255-TSC Document 107 Filed 10/12/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

Civil Action No. 1:17-cv-255 Hon. Tanya S. Chutkan

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs1—individual Iranian nationals and three national Iranian-American organizations—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 Preliminary Injunction (“Memorandum”). See Fed. R. Civ. P. 65(a). Plaintiffs seek to enjoin Defendants from enforcing or implementing certain provisions of President Donald J. Trump’s September 24, 2017 Proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States By Terrorists or other Public-Safety Threats.” Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017). As demonstrated in the

1 This Motion for a preliminary injunction is filed, by and through undersigned counsel, on behalf of organizational Plaintiffs Pars Equality Center, Iranian American Bar Association, and Public Affairs Alliance of Iranian Americans, Inc. as well as individual Plaintiffs Shiva Hissong, Montra Yazdani, Sepideh Ghajar, Mohammad Reza Shaeri, Mohammed Jahanfar, John Doe #1, John Doe #9, John Doe #10, Jane Doe #1, Jane Doe #4, Jane Doe #13, Jane Doe #14, and Jane Doe #15. The remaining individual Plaintiffs were harmed by Defendants’ conduct and remain Plaintiffs in the above-captioned matter for purposes of seeking permanent relief.

Case 1:17-cv-00255-TSC Document 107 Filed 10/12/17 Page 2 of 4 Memorandum, the Proclamation and Defendants’ enforcement of it violate the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act and its implementing regulations, and the Administrative Procedure Act. Defendants should be enjoined from enforcing or implementing §§ 2 and 3(c) of the Proclamation.
Pursuant to Local Rule 7(m), counsel for Plaintiffs state that they have conferred with opposing counsel regarding the filing of this motion for preliminary injunction. Defendants oppose this relief.
For the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction.
A proposed Order is attached hereto.
2

Case 1:17-cv-00255-TSC Document 107 Filed 10/12/17 Page 3 of 4

Dated: October 12, 2017
Cyrus Mehri (D.C. Bar # 420970) Joanna K. Wasik (D.C. Bar # 1027916) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org
Hassan Zavareei (D.C. Bar # 456161) TYCKO & ZAVAREEI LLP 1828 L Street, NW Suite 1000 Washington, DC 20036 (202) 973-0900 (202) 973-0950 (fax) hzavareei@tzlegal.com
Adrienne D. Boyd (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP Suite 4400 370 Seventeenth Street Denver, CO 80202 (303) 863-1000 (303) 832-0428 (fax) adrienne.boyd@apks.com

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Sally L. Pei (D.C. Bar # 1030194) Sonia Tabriz (D.C. Bar # 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Susan S. Hu (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 (212) 836-8000 (303) 836-8689 (fax) susan.hu@apks.com
Counsel for Plaintiffs

3

Case 1:17-cv-00255-TSC Document 107 Filed 10/12/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, John A. Freedman, hereby certify that on October 12, 2017, the foregoing document was filed and served through the CM/ECF system.
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com Counsel for Plaintiffs
4

Case 1:17-cv-00255-TSC Document 107-1 Filed 10/12/17 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

No. 17-cv-255 (TSC) Electronically Filed Hon. Tanya S. Chutkan

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

Case 1:17-cv-00255-TSC Document 107-1 Filed 10/12/17 Page 2 of 37
TABLE OF CONTENTS Page
INTRODUCTION ............................................................................................................................1 A. Critical Events Leading to the September 24 Proclamation .........................3 B. The September 24 Proclamation is the “Much Tougher” Versison of the Travel Ban the President Promised.........................................................5 C. Effects of the September 24 Proclamation on Plaintiffs...............................7
ARGUMENT .................................................................................................................................. 13 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS .........................14 A. The Proclamation is “Contary to Law” Under the Administrative Procedure Act Because It Mandates Violation of the AntiDiscrimination Provisions of the Immigration and Nationalities Act ........14 B. The Proclamation Violates Equal Protection..............................................16 C. The Proclamation Violates the Establishment Clause ................................22 D. The Proclamation Violates Due Process.....................................................24 II. PLAINTIFFS WILL SUFFER IMMEDIATE, IRREPARABLE HARM ABSENT PRELIMINARY RELIEF ......................................................................26 III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST SUPPORT PRELIMINARY RELIEF.......................................................................................28
CONCLUSION...............................................................................................................................30
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TABLE OF AUTHORITIES

CASES

Page(s)

American Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) ................................................................................................24

Arizona Dream Act Coalition v. Brewer, 818 F.3d 901 (9th Cir. 2015) ....................................................................................................38

Bonham v. D.C. Library Admin., 989 F.2d 1242 (D.C. Cir. 1993) ..........................................................................................30, 31

Brown v. Board of Educ. Of Topeka, 347 U.S. 483 (1954)..................................................................................................................29

Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983) ........................................................23

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ..................................................................................................34

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Kennedy, J., joined by Stevens, J.) ........................................................31

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985)..................................................................................................................28

City of New Orleans v. Dukes, 427 U.S. 297 (1976)..................................................................................................................24

Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) ................................................................................................24

Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) ..................................................................................................21

Graham v. Richardson, 403 U.S. 365 (1971)............................................................................................................24, 31

Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980) ............................................................................................23

Harisiades v. Shaughnessy, 342 U.S. 580 (1952)..................................................................................................................24

ii

Case 1:17-cv-00255-TSC Document 107-1 Filed 10/12/17 Page 4 of 37
Harris v. McRae, 448 U.S. 297 (1980)..................................................................................................................24
Hernandez v. Texas, 347 U.S. 345 (1954)..................................................................................................................17
I.N.S. v. Chadha, 462 U.S. 919 (1983)..................................................................................................................24
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.), cert. granted, 137 S. Ct. 2080, 198 L. Ed. 2d 643 (2017)......................................................................................................................11, 12, 30, 34
KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ................................................................................................36
Kleindienst v. Mandel, 408 U.S. 753 (1972)..................................................................................................................24
Landon v. Plascencia, 459 U.S. 21 (1982)....................................................................................................................33
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) ..........................23
Mathews v. Eldridge, 424 U.S. 319 (1976)..................................................................................................................32
McCreary, Cnty. v. ACLU of Ky., 545 U.S. 844 (2005)............................................................................................................31, 32
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ................................................................................................34
Nken v. Holder, 556 U.S. 418 (2009)..................................................................................................................36
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..............................................................................................................33
Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997) .................................................................................................23
Oyama v. California, 332 U.S. 633 (1948)..................................................................................................................17
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Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................................24, 33
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)..................................................................................................................24
Romer v. Evans, 517 U.S. 620 (1996)............................................................................................................28, 29
Rosenbaum v. Washoe Cty., 663 F.3d 1071 (9th Cir. 2011) ..................................................................................................33
Statharos v. N.Y. Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999)......................................................................................................34
Trump v. IRAP, 582 U.S. ___, 137 S. Ct. 2080 (2017).....................................................................12, 29, 30, 35
U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973)..................................................................................................................28
United States v. U.S. Coin & Currency, 401 U.S. 715 (1971)..................................................................................................................36
United States v. Windsor, 133 S. Ct. 2675 (2013)..............................................................................................................28
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)..................................................................................................................26
Washington v. Trump, 847 F.3d 1151 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017) ............................................................................................................................25, 32
Washington v. Trump, 847 F.3d at1169 ........................................................................................................................35
Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir. 1966)......................................................................................................23
Zadvyda v. Davis, 533 U.S. 678, 693 (2001)............................................................................................................5
STATUTES
5 U.S.C. § 706(2)(A).......................................................................................................................24
8 U.S.C. § 1152(a)(1)(A) ..........................................................................................................22, 23
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8 U.S.C. § 1182(f)...........................................................................................................................23 Administrative Procedure Act.........................................................................................................23 Civil Rights Act of 1964 and the Voting Rights Act of 1965.........................................................22 Immigration and Nationalities Act..................................................................................................21 Immigration and Nationalities Act of 1965 ....................................................................................22 Immigration and Nationality Act of 1965.........................................................................................9 OTHER AUTHORITIES H.R. Rep. No. 89-745, at 8 (1965)..................................................................................................22 Sen. John McCain, Speak Out for Iran and Its Democracy, Arizona Republic, Feb.
5, 2017.......................................................................................................................................37 U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 45 (Apr. 2016) ..........................36 U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 48 (Apr. 2016) ..........................37 U.S. Const. amend. V................................................................................................................24, 32 U.S. Dep’t of State, Bureau of Counterterrorism & Countering Violent
Extremism, Country Reports on Terrorism 2016 (June 2016) .................................................27 U.S. Dep’t of State, Iran 2015 Human Rights Report 15, in Country Report on
Human Rights Practices for 2015 .............................................................................................37
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INTRODUCTION When President Trump’s second travel ban was enjoined by multiple courts, he expressed his desire to seek “a much tougher version” than the “watered down, politically correct” version that was issued on March 6. SAC ¶ 92. On September 24 – precisely as he said he would -- the President announced a “much tougher,” and much more discriminatory travel ban (“September 24 Proclamation”). Given President Trump’s reaction to courts that have enjoined his Orders, and his continued vocal support for a Muslim ban despite those injunctions, there can be no doubt that the latest Proclamation was created with the same goal as his previous Executive Orders: to ban Muslims from entering the United States. This is confirmed by the Order itself which, among other things, indefinitely bans the issuance of all immigrant and almost all nonimmigrant visas to Iranians and bans the issuance of all immigrant visas to the nationals of five other majorityMuslim nations. On its face, the September 24 Proclamation requires the government to violate the anti-discrimination provisions of the Immigration and Nationality Act of 1965, and it continues the constitutional violations of its predecessors. In light of the President’s statements and news reports about its politicized development, the purported national security rationale for the September 24 Proclamation are no less suspect than its predecessors. On October 5, the government asked that the Supreme Court vacate the injunctions of the prior orders, which currently allow visas to be issued to individuals with “bona fide relationships with a person or entity in the United States.” That means when the September 24 Proclamation takes effect, it will interfere with the fundamental rights of Plaintiffs and many other similarly situated individuals from marrying, from co-habitating with their spouses, from having cherished family members join their households, from having grandparents meet their grandchildren, from
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travelling internationally, and from pursuing their chosen professions. The declarations submitted with this motion establish that when the September 24 Proclamation takes effect:  Mohammed Jahanfar and Jane Doe #1 will be unable to get married to their visa-seeking
fiancés and live with them in the United States. Ex. 7. ¶ 50; Ex. 12. ¶ 33.  Jane Doe #13 and her fiancé will either have to postpone their wedding plans or get married
without her parents present because they cannot get a tourist visa. Ex. 14. ¶¶ 25-27.  Mohammad Reza Shaeri will be separated from his wife indefinitely. Ex. 8. ¶ 25.  Montra Yazdani, Jane Doe #14, Jane Doe #15 will be separated from their parents for
extended periods of time and unable to spend regular time with them, rely on their help in raising families, or care for them as they age. Ex. 5. ¶¶ 12, 28; Ex. 15. ¶¶ 20-21; Ex. 16. ¶ 7-8.  Jane Doe #4 – an Iranian citizen who was granted asylum in the United States in 2016, who is unable to return to Iran due to feared religious persecution – will be unable to have her parents travel to the United States for a visit and she will be separated from them indefinitely. Ex. 13. ¶¶ 3, 17.  Shiva Hissong, Sepideh Ghajar, John Doe #1, and John Doe #10’s close family members will be unable to travel to the United States for a visit and they will be separated indefinitely. Ex. 4. ¶ 29; Ex. 6. ¶ 20; Ex. 9 ¶ 15; Ex. 11. ¶ 48.  John Doe #1’s wife will be unable to apply for a work authorization and they are unable to leave the country for fear their visas will not be renewed. Ex. 9. ¶¶ 15-19.  John Doe #9 will be unable to accept his job offer and live out his dream of living in the United States and creating a better life for himself and his family in the United States. Ex. 10 ¶ 11. All of these individuals and countless others (including those who are assisted by the organizational Plaintiffs) will suffer irreparable harm when the September 24 Proclamation takes effect. This Court should enjoin the administration’s implementation of the September 24 Proclamation forthwith.
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FACTUAL BACKGROUND A. Critical Events Leading to the September 24 Proclamation President Trump’s promise to ban Muslims and individuals from majority-Muslim countries from entering the United States was a signature promise of his Presidential campaign and a centerpiece of his Administration’s agenda. SAC. ¶¶ 56-57. President Trump’s statements, which have been documented extensively in previous filings before this Court,1 leave no doubt as to the unlawful and blatantly discriminatory purpose behind his administration’s actions banning individuals from countries with predominantly Muslim populations from the United States. As Fourth Circuit concluded in upholding a nationwide injunction against the March 6 Executive Order: “Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 594 (4th Cir.), cert. granted, 137 S. Ct. 2080, 198 L. Ed. 2d 643 (2017) (“IRAP”). After mounting criticisms, then-candidate Trump changed the mechanics of his ban to focus on nationals from “certain areas of the world.” He explained that he did so because “[p]eople were so upset when I used the word Muslim,” and that he could not “use the word Muslim,” so he was “looking now at territories. . . . I’m talking territory instead of Muslim.” SAC. ¶ 61. In other words, President Trump admitted that he would use country of origin as a pretext for religious discrimination.
1 Plaintiffs have listed illustrative statements made by Mr. Trump on banning Muslims from entering the country in several filings to this Court and a full account will not be repeated here. For a detailed description of such statements, see Compl. [D.I. # 3], ¶¶ 49-63; Mem. of Law in Support of Pl.’s First Mot. for a Preliminary Injunction [D.I. # 9], at 4-6, 14-15; First Am. Compl. [D.I. # 34], ¶¶ 54-110; Mem. of Law in Support of Pl.’s Second Mot. for a Preliminary Injunction [D.I. # 35-1], at 26-27.
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Following the entry of injunctions of the January 27 Order by multiple courts, President Trump announced that he would revoke that order and issue a new one; senior White House officials assured the media and Trump’s supporters that the revised executive order would have “mostly minor, technical differences,” but “[f]undamentally” be the “same” and have the “the same, basic policy outcome for the country,” meaning the policies from the January 27 Order “are still going to be in effect.” SAC ¶ 77. The revised Order – issued March 6 – was in fact, fundamentally the same as the January 27 Order. Hours after signing the March 6 Order, President Trump emailed his supporters soliciting financial contributions and extolling the fact that the Order targeted nationals of “Islamic” countries. SAC ¶ 86.
Following the issuance of injunctions of the March 6 Order by two courts, in a March 16 speech in Nashville, the President admitted that the March 6 Order was “a watered down version of the first order” and that it targeted nationals of “Islamic” countries. SAC ¶ 88. He also said, in light of the Court injunctions, “I think we ought to go back to the first one and go all the way.” Id.. When the injunctions of the March 6 order were sustained by appellate courts, President Trump on June 5 again characterized the March 6 Executive Order as a “watered down, politically correct” version of the January 27 Executive Order. SAC ¶ 92. The President then tweeted that Department of Justice “should have stayed with the original Travel Ban” and he would seek “a much tougher version.” Id.
In response to the government’s request to stay the injunctions of the March 6 Order and petition for certiorari, on June 26, the Supreme Court granted certiorari and in a per curiam order, sustained the injunctions in material part – holding that the March 6 Orders could not be enforced to the extent they barred issuance of visas to individuals with a “credible claim of a
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bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 582 U.S. ___, 137 S. Ct. 2080, 2088 (2017).
B. The September 24 Proclamation is the “Much Tougher” Versison of the Travel Ban the President Promised
President Trump’s third attempt at a Muslim Travel ban was issued on September 24, 2017. The differences between the latest ban and the partially-enjoined March 6 Executive Order demonstrate it is “much tougher” than its predecessors. While the September 24 Proclamation continues to target five of the six Muslim-majority countries targeted by the March 6 Order -- Somalia, Syria, Libya, Yemen, and Iran – it adds Chad, which is also a majorityMuslim country. Unlike its predecessors, the September 24 Proclamation restricts nationals from these countries from entry into the United States indefinitely.
With respect to Iran, the September 24 Proclamation indefinitely bans the issuance of all immigrant visas and all nonimmigrant visas to Iranian nationals other than student or exchange visas, and requires individuals traveling on student or exchange visas to undergo unspecified “enhanced screening and vetting requirements.” September 24 Proclamation § 2(b)(ii). The visa restrictions with regard to the five other majority Muslim countries are similar – issuance of immigrant visas are banned for all, while the range of nonimmigrant visas varies.2 The September 24 Order exempts the same categories of individuals from the travel ban as the March 6 Order, see id. § 3(b)(i)-(vi). and contains a similar discretionary waiver provision for individuals who can demonstrate that denial of their entry will cause them “undue hardship,” that
2 All classes of Somalian nonimmigrant visas may be issued subject to unspecified enhanced screening and vetting requirements. Nationals of Chad, Libya, and Yemen may not receive tourist or business visas. Syrian nationals may not receive nonimmigrant visas.
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they pose no “threat to national security or public safety,” and that their entry would be “in the national interest.” Id. § 3(c)(i).
Like the March 6 Order, the September 24 Proclamation provides a short, two-sentence explanation for the exclusion of Iranian nationals:
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. Id. § 2(b)(i). In addition to the six majority Muslim countries, the September 24 Proclamation also includes nationals of two states with whom the United States has very difficult relations – North Korea and Venezuela – that will impact a small number of individuals: the Venezuelan restrictions are limited to Venezuelan government officials who work for five ministries and their families, and very few North Koreans seek visas to enter the United States (in 2016, there were nine immigrant visas issued to North Koreans). In other words, the inclusion of these countries does not impact the fundamentally anti-Muslim nature of the September 24 Proclamation. The September 24 Proclamation also explains the Administration’s “process” that identified the eight countries. According to the Order, the Department of Homeland Security and the Department of State assessed the performance of every foreign government against certain requirements to confirm the identity of foreign nationals seeking entry and determine whether they pose a security threat to the U.S. Section 1(c). According to the Order, the initial evaluation identified 16 countries as “inadequate” when compared to the baseline criteria and 31 countries at risk of becoming “inadequate.” Id. Sec. 1(e). After a 50-day engagement period with foreign governments to improve their performance, the Secretary of Homeland Security
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submitted a report to the President on September 15, recommending that travel restrictions be imposed on nationals from seven countries. Sec. 1(h). Press reports indicate that this process was not neutral but was driven by political as opposed to security considerations, including the removal of countries from the list of 47 “inadequate” and “at risk” countries, and the addition of a country to the list of travel restrictions dictated by White House staff. SAC ¶¶ 105-106.
On October 5, the government filed a brief with the Supreme Court requesting that the injunctions regarding the prior Executive Orders be vacated. The September 24 Proclamation thus removes the ability of individuals from listed countries with “bona fide relationships with a person or entity in the United States” from receiving visas.
C. Effects of the September 24 Proclamation on Plaintiffs The January 27 and March 6 Executive Orders have inflicted extraordinary harm on countless Iranian Americans and Iranian nationals. Of the countries singled out by the September 24 Proclamation, historically approximately 60 percent of the affected visas have been issued to Iranian nationals. SAC ¶ 98. As has been detailed in prior briefs, the government’s actions have separated fiancés and spouses, delayed or prevented weddings, separated parents from children, separated grandparents from grandchildren, and kept families apart for critical life events such as weddings or the birth of children. The government’s actions have also prevented students from pursuing their educations, young professionals from pursuing their careers, medical researchers from collaborating with colleagues to advance science, and many individuals from travelling internationally because they are afraid if they leave the United States they will not be allowed to reenter. SAC ¶¶ 129-29, 133, 139, & 143-44. While the existing injunctions have helped mitigate some individual situations, many individuals continue to have their lives fundamentally frustrated by the govenrment’s action. Plaintiffs have identified numerous instances of visa
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applciations remaining in limbo for abnormally long periods of time without any final
determination as to whether they should be granted or denied, with others denied outright on the
basis of overt religious discrimination or other suspect circumstances.
If and when the existing injunctions are lifted and September 24 Proclamation takes
effect, it will exacerbate these harms. No immigrant visas will be issued to Iranians. This
impacts individuals who want to get married or want to reunify with their families, as well as
people who were planning to immigrate pursuant to visa programs. For example, this is how the
September 24 Proclamation will impact the lives of certain individual Plaintiffs who wanrt to
marry Iranian nationals or co-habitate with their Iranian national spouses:
 Plaintiff Jane Doe #1 is a dual citizen of the United States and Iran whose fiancé’s visa was orally approved in October of 2016 but not issued before the January 27 Executive Order was signed. Jane Doe #1 and her fiancé have been unable to receive any information about the status of his visa. They fear that they will be unable to marry or live in the United States as they had planned. Ex. 12 ¶¶ 14, 16, 43, & 50.
 Mohammed Jahanfar is a U.S. citizen and U.S. military veteran whose fiancé’s visa was approved in May 2017, after the January 27 Executive Order was signed. On September 11, 2017, he and his fiancé were turned away from their interview at a U.S. embassy without explanation. They have been unable to receive any information about the status of the visa. They fear that they will be unable to live their life together in this country as they intended. Ex. 7 ¶¶ 3, 15, 18, 23, 27, & 33.
 Mohammad Reza Shaeri, a lawful permanent resident with a Ph.D. in mechanical engineering, has been separated from his wife for months because she has not been granted a visa to enter the United States after completing her own Ph.D. studies in Australia. Mr. Shaeri applied for an immigrant visa on her behalf on June 6, 2017. He fears that the visa will not be issued because of the September 24 Executive Order. Ex. 8. ¶¶ 2, 15, 16, & 25.
This is how the September 24 Proclamation will impact the lives of certain of the individual
Plaintiffs who will to reunify their families by having their parents immigrate to the United
States:
 Montra Yazdani is a naturalized U.S. citizen who petitioned for her parents to emigrate to the United States to be closer to their children and grandchildren. Both visas have been orally
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approved but not issued. Ms. Yazdani fears the September 24 Executive Order will block the issuance of her parents’ visas. Ex. 5 ¶¶ 10, 12, & 16.
 Jane Doe #14 is duel citizen of the U.S. and Iran and is pregant with her first child. Jane Doe #14’s mother applied for an immigrant visa to move to the United States and help care for the baby. The visa remains in administrative processing and Jane Doe #14 has been unable to receive any information about the status of her mother’s visa. Jane Doe #14 is afraid her mother will not be able to come to United States and help care for her grandchild. Ex. 15. ¶¶ 3, 15, & 18-21.
 Jane Doe #15 is duel citizen of the U.S. and Iran and has petitioned for immigrant visas on behalf of her aging parents so that they can come live with her in the United States. Anxious that she will be separated from her parents for extended periods of time after the September 24 Proclamation goes into effect, Jane Doe #15 has started looking for jobs in other countries and is considering living apart from her husband, who must stay in the United States for his job. Ex. 16. ¶¶ 2, 10, & 17-18.
This is how the September 24 Proclamation will impact the lives of certain of the other
individual Plaintiffs who intend to immigrate to the United States.
 John Doe #9 was selected to receive a visa through the Diversity Immigrant Visa (“DV”) program. After he completed his interview, however, he received an email informing him that, although administrative processing had been completed on his file, he would need to submit proof of a close familial relationship, current job, or job offer in the U.S. in order to be exempt from the March 6, 2017 Executive Order. He has a job offer in the United States and provided documentation of that to the government,but his passport was returned to him without a visa on September 4, 2017. John Doe #9 dreams of creating a better life for himself and his family in the United States. He fears the September 24 Proclamation will prevent him from moving to the United States. Ex. 10 ¶¶ 4, 9, & 11.
The September 24 Proclamation will also bar individuals who are seeking to travel to the United
States on almost every form of nonimmigrant visa. This includes individuals who have “bona
fide relationship with a person or entity in the United States,” including parents or children,
grandparents or grandchildren, and people who are trying to reunify with their families around
critical life events. For example, this is how the September 24 Proclamation will impact the lives
of some of the Individual Plaintiffs:
 Plaintiff Shiva Hissong, a lawful permanent resident who lives in the United States, was preparing to bring her very ill father and her mother from Iran to visit their new grandchild in
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the United States. She now fears that the September 24 Proclamation will prevent her parents from ever being able to visit the United States to see their grandchild. Ex. 4 ¶¶ 3, 12, & 29.
 Plaintiff Jane Doe #4 is an asylee who is in the process of applying for a green card. She fled political persecution in Iran and cannot return there. She fears that the September 24 Proclamation will bar her family from ever visiting her in the United States. Ex. 13. ¶¶ 3 &17.
 Plaintiff Jane Doe #13 is engaged to be married to a U.S. citizen and planning a wedding in the United States. If and when the September 24 Proclamation is enforced, Jane Doe #13’s parents will be unable to apply for a tourist visa to attend the wedding. Jane Doe #13 will be forced to choose between getting married in the United States without her parents present, or asking her fiancé’s family to travel out of the country. She is also distraught that the September 24 Proclamation will prevent her parents and other relatives from ever visiting her in the future. Ex. 14. ¶¶ 10 &25-27.
 Plaintiff John Doe #1 is an Iranian citizen who entered the United States on an F-1 student visa and is currently residing in New York City. He is in his second year of a PhD program in finance and economics. His wife, who has a PhD in electrical engineering, had an F-2 visa for spouses of students. Both his and his wife’s student visas are expired and they are fearful of leaving the United States because they are concerned the September 24 Proclamation will prevent their visas from being reissued and they will not be readmitted to the United States. Because of this face separation from their families in Iran. Ex. 9. ¶¶ 1, 5, & 15-16.
 Sepideh Ghajar is a U.S. Green Card holder and the founder of a Silicon Valley technology startup with a demanding work schedule. His mother applied for a visitor visa so that she could spend time with her son, but it remains in “processing.” Mr. Ghajar cannot travel to Iran himself and he fears that, if the ban takes effect, he may not be able to see his mother for many years. Ex. 6. ¶¶ 3, 9, 16, & 20.
 John Doe #10 is a U.S. citizen and his wife is citizen of Iran and a lawful permanent resident of the United States. The couple has a four-month-old baby. It is not safe for the family to visit Iran because John Doe #10’s wife converted to Christianity. John Doe #10’s parents-inlaw have been unable to visit the family—and their first grandchild—because of the Executive Orders. John Doe #10 fears that the September 24 Proclamation will prevent his wife’s parents from ever being able to visit the U.S. and see their grandchild. Ex. 11. ¶¶ 3, 4, & 48.
By its own terms, when the September 24 Proclamation takes effect, the Defendants will ban
issuance of all of these visas, many of which were very far along in the process, leaving all of
these Plainitffs separated from family members and/or their jobs. This is reminescent of the
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actions the administration took in the immediate wake of the January 27 Executive Order when it revoked over 60,000 visas issued to individuals from the listed nations. SAC ¶ 68.
This Court has already been presented with extensive testimony and evidence of how the January 27 and March 6 Orders have impacted the organizational plaintiffs. See, e.g., Apr. 18, 2017 Hr’g Tr. at 14:17-36:8, 65:10-74:14; Pl.’s First Mot. for a Preliminary Injunction, Exs. 1-4 [ECF No. 9]; Pl.’s Second for Preliminary Injunction, Exs. 1-4 [ECF No. 35-2]. The announcement of the September 24 Proclamation has further harmed and undermined the missions of the organizational Plaintiffs, and these injuries will only be exacerbated if and when the September 24 Proclamation takes effect. The organizational Plaintiffs provide a critical perspective on how the individual plaintiff injuries are magnified and repeated across the whole Iranian-American community.
This discriminatory policy of exclusion has already and will continue to separate families, prevent weddings, exclude professionals from work opportunities and students from educational opportunities, and stigmatize a community that has made and continues to make enduring contributions to the United States. See Pars Decl. ¶¶ 21, 25, & 29-32; PAAIA Decl. ¶¶ 22-23, 30-31, 38; IABA Decl. ¶¶ 14-15, 31-32, & 35-36. Lawful permanent residents, current visa holders and even U.S. citizens lose the ability to maintain ties with family in Iran. Iranian Americans, mindful of how the government has treated them since January 27, fear that their ability to freely travel abroad and return to the U.S. can be revoked at any time without notice. See Pars Decl. ¶¶ 23 & 26-27; IABA Decl. ¶¶ 13, 20, 32 & 40.
The September 24 Proclamation has a greater impact on Iranian nationals and the families and opportunities they are connected to in the United States than on any other nationality impacted by the ban. Based on State Department visa statistics, visas issued to Iranian
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nationals have historically represented over 60 percent of the immigrant and nonimmigrant visas affected by the September 24 Proclamation. 3
The organizations continue to divert enormous resources to mitigate the adverse consequences of the Executive Actions and the September 24 Proclamtion on the IranianAmerican community. See Pars Decl. ¶¶ 33-40; IABA Decl. ¶¶ 39-52; PAAIA Decl. ¶¶ 33-43. The organizational Plaintiffs have received hundreds of reports from Iranian Americans about the catastrophic effects of the travel bans, and requests for assistance to address the September 24 Proclamation. See Pars Decl., Ex. 1, ¶¶ 21-25; IABA Decl., Ex. 2, ¶¶ 30-37; PAAIA Decl., Ex. 3, ¶¶ 21-23 & 28-32. They have put pre-existing plans on hold and been unable to perform the regular work that advances their missions, as their staff and leadership are overwhelmed by questions and requests for direct assistance. See Pars Decl. ¶¶ 33-40; IABA Decl. ¶¶ 30-32, 41, & 45-49; PAAIA Decl. ¶¶ 22-23, 28, 32-33, & 37. Since January 27, they have devoted hundreds of hours and diverted resources to assisting Iranian individuals and families whom the Executive Orders have has left stranded and the September 24 Proclamation threatens to harm significantly. See Ex. 1. ¶¶ 24-25, 33-41; Ex. 2. ¶¶ 30-33, 39-52; Ex. 3. ¶¶ 32-43 . And the travel bans represent a radical break with longstanding U.S. government policy encouraging greater ties between the people of Iran and the United States and providing refuge to people fleeing the Iranian government.
Like the prior Executive Orders, the September 24 Proclamation and its impending enforcement have also directly undermined these organizations’ missions. The Proclamation conflicts with Pars’ efforts to elevate individuals in the Iranian-American community to their
3 U.S. State Department, Immigrant Visas Issued at Foreign Service Posts (by Foreign State Chargeability) (All Categories) Fiscal Year 2007-2016; Nonimmigrant Visas Issued Fiscal Year 2007-2016.
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highest career potential, and impedes Pars’ ability to provide social services and classes to achieve this goal. Pars Decl. ¶¶ 10, 14, & 29-32. IABA, as an organization of lawyers, law students, and judges, supports the rule of law; its mission of supporting the rule of law is undermined by reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who properly followed all procedures necessary to obtain valid permission for family members to enter the United States face arbitrary, unjust, and discriminatory restrictions on their rights. IABA Decl. ¶¶ 17, 39, & 50-51. By implicitly labeling all Iranian nationals as security threats to the U.S. and indiscriminately targeting them for travel restrictions, the Proclamation has directly undermined PAAIA’s mission to promote a positive image of IranianAmericans and combat discrimination and harassing treatment towards the Iranian community. PAAIA Decl. ¶¶ 21, 32-33, 39-42.
Finally, from the perspective of the Iranian-American plaintiffs and organizations, this is not likely to simply be a temporary delay. The September 24 Proclamation provides for an indefinite travel ban. It is highly unlikely that the relationships between the Iranian and U.S. governments will materially change in the foreseeable future, and accordingly, according to the terms of the September 24 Proclamation, the ban will remain in effect.
ARGUMENT To obtain a preliminary injunction, a party must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) the injunction is in the public interest. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011). Plaintiffs satisfy each of these factors.
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I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS A. The Proclamation is “Contary to Law” Under the Administrative Procedure Act Because It Mandates Violation of the Anti-Discrimination Provisions of the Immigration and Nationalities Act Plaintiffs are likely to prevail on their APA claim. In 1965, Congress enacted the
Immigration and Nationalities Act to change longstanding immigration policies in this country that excluded immigrants who desired to come to this country based on their country of origin. Historically, the immigration authorities had used their discretionary authority to promote immigration from predominantly Protestant Northern European countries and to deter nonProtestant European immigrants, as well as all non-European immigrants by imposing bans on nationals of certain countries or strict admittance quotas.
The Immigration and Nationalities Act of 1965 fundamentally changed this approach to immigration. Congress passed the INA 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). Drafted in parallel with major civil rights legislation (including the Civil Rights Act of 1964 and the Voting Rights Act of 1965), the language of the INA echoes these key civil rights statutes when it declares that “no person shall . . . 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).
On its face, the September 24 Proclamation violates this antidiscrimination provision. It states that immigrant visas cannot be issued to Iranians (or nationals of the other listed countries). This necessarily precludes issuance of visas to these individuals because of their “nationality,” “their place of birth,” and their “place of residence.” And the long list of statements by President Trump and his advisors leave no doubt that Iranians (and the nationals of
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the majority Muslim countries) are being treated discriminatorily. See SAC ¶¶ 56-62, 86, 88, & 95.
The government’s actions in promulgating the September 24 Proclamation, like the two prior executive orders, runs counter to five decades of consistent government practice. In that time, courts have consistently held that Congress made nationality an “impermissible basis” for admission and deportation decisions. Chadha v. INS, 634 F.2d 408, 429 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983) (quoting Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966)); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995) (“LAVAS”), vacated on other grounds, 519 U.S. 1 (1996). See also Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980). The “bold anti-discriminatory principles” that pervade the INA’s legislative history, Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997), make clear that the government may not undertake invidious discrimination in refusing to issue immigrant visas. Cf. LAVAS, 45 F.3d at 473 (interpreting § 1152(a)(1)(A) and stating that “[h]ere, Congress has unambiguously directed that no nationality-based discrimination shall occur”).
The September 24 Proclamation invokes the President’s authority under § 212(f) of the INA to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” if he determines that such entry would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). But this provision cannot justify the September 24 Proclamation because the travel ban violates the INA’s prohibition of discrimination on the basis of nationality. Whatever power the President has to suspend entry of classes of aliens under § 212(f)—and Defendants’ ability to implement such a suspension—is limited by a separate, later-enacted congressionally
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imposed limitation—8 U.S.C. § 1152(a)(1)(A)—that any such power may not be invoked in a discriminatory manner or in furtherance of discriminatory goals.
In requiring the government to act in a manner contrary to § 1152(a)(1)(A) – by prohibiting the issuance of immigrant visas on a single and impermissible basis— discrimination based on nationality – the September 24 Proclamation violates the Administrative Procedure Act. Under the APA, actions which are “not in accordance with the law” are unlawful and to be set aside. 5 U.S.C. § 706(2)(A). See, e.g., American Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001); Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002).
B. The Proclamation Violates Equal Protection Plaintiffs are likely to prevail on their equal protection claim. The President’s authority under § 212(f) to “suspend the entry of . . . class[es] of aliens as immigrants or nonimmigrants” is subject to constitutional limitations. He is not free to act with impunity in defining such “classes.” Rather, the government must choose “a constitutionally permissible means of implementing [its] power.” I.N.S. v. Chadha, 462 U.S. 919, 941 (1983). At a bare minimum, the government’s interests must be “facially legitimate and bona fide,” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), and not mere “pretense” for invidious discrimination, Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952). Here, the September 24 Proclamation violates the Equal Protection component of the Fifth Amendment for two reasons.4 First, if the government employs a suspect class or burdens the exercise of a constitutional right, then strict scrutiny applies, and the government must show that the law is
4 The Fifth Amendment has an “equal protection component,” Harris v. McRae, 448 U.S. 297, 321 (1980), which applies to citizens and non-citizens alike, see Plyler v. Doe, 457 U.S. 202, 210 (1982).
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narrowly tailored to serve a compelling governmental interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978).
Here, the government’s use of national origin is discriminatory in its own right, and also because it serves as a pretext for the President’s well-documented effort to discriminate on the basis of religion. Such classifications are suspect and trigger strict scrutiny. See Graham v. Richardson, 403 U.S. 365, 371-72 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Hernandez v. Texas, 347 U.S. 345 (1954); Oyama v. California, 332 U.S. 633 (1948). The Ninth Circuit held as much when it examined evidence of “numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as . . . sections 5(b) and 5(e) of the [first Executive] Order” favoring religious minorities in refugee admissions. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017), and reconsideration en banc denied, 858 F.3d 1168 (9th Cir. 2017). The court upheld a national injunction that barred the enforcement of major parts of the first Executive Order and made sure to “note the serious nature of the allegations the States have raised with respect to their religious discrimination claims.” Id. at 1165. Similarly, in staying enforcement of key parts of the second Executive Order, the Fourth Circuit concluded that “there is a direct link between the President’s numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and [the second Executive Order], the “watered down” version of that plan that “get[s] just about everything,” and “in some ways, more.” 857 F.3d at 599–600.
When his prior orders were enjoined, the President promised to “go all the way” and seek “a much tougher version.” And he has. The history and structure of the September 24
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Proclamation demonstrate that the purpose and effect of the September 24 Proclamation is to ban Muslims, i.e., to discriminate on the basis of religion.
Against the backdrop of the President’s many statements that he would ban Muslims from entering the United States, and the admissions that he and his advisors made that they would use geographic criteria to achieve this impermissible goal, SAC ¶¶ 56-61, it is clear that is exactly what the September 24 Proclamation does. To the tens of thousands of individuals impacted by the designation of five majority Muslim countries on the March 6 list, the September 24 Proclamation add a sixth majority Muslim country (Chad). The imposition of additional restrictions – those that impact the exceedingly small number of North Koreans (9 of whom received immigrant visas in 2016) and Venezuelan government officials who work for one of five designated ministries – does nothing to change the fundamentally anti-Muslim focus of the September 24 Proclamation. Like its predecessors, the September 24 Proclamation is the Muslim ban the President promised to deliver; while the September 24 Proclamation, like its predecessors, employs discrimination on the basis of national origin as a pretext for discrimination against Muslims, it is still subject to strict scrutiny. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977).
The Proclamation cannot withstand strict scrutiny. Its broadly stated rationale is to “address both terrorism-related and public-safety risks.” But the Proclamation is not narrowly tailored to achieve these goals. The Proclamation bans nearly every person from 7 of the specified countries and certain Venezuelan nationals without any evidence that any individual poses a threat to the United States. A study conducted by the CATO Institute that reviewed data from 1975-2015 found not one single case of an American being killed in a terrorist attack in this country by a person born in Iran or the other majority Muslim nations identified the
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Proclamation.5 Moreover, the Proclamation’s categorical ban on Iranians makes no sense when
considered in light of:
 The February 2017 Department of Homeland Security intelligence assessment that concluded (i) citizenship was an “unlikely indicator” of terrorism threats against the United States, and (ii) that very few persons from the seven countries included in the January 27 Executive Order had carried out or attempted to carry out terrorism activities in the United States since 2011. SAC ¶ 78.
 The reasons cited exclusion of Iranians are all directed at grievances with the Iranian government and provide no support for a wholesale policy of excluding Iranian nationals. The Proclamation cites no acts of terror committed by Iranian nationals, nor does it cite any terrorist attacks perpetrated by Iran within the United States. In stating that Iran “is the source of significant terrorist threats: and is a “state sponsor of terrorism,” the U.S. government cited Iran’s support for or engagement in activities with non-Iranian individuals, and for actions that have occurred in countries outside of Iran other than the United States. Country Reports on Terrorism 2016 (June 2016), supra, at 300-01. SAC ¶¶ 100-101 & 103.
 The treatment of Iranian nationals is far harsher than the treatment of the only predominantly Christian nation on the list (Venezuela). The State Department classifies Venezuela, like Iran, as a “terrorist safe haven.”6 And the September 24 Proclamation notes that Venezuela, like Iran, is “uncooperative in verifying whether its citizens pose national security or public-safety threats,” and is “not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States.” Yet, the September 24 Proclamation restricts entry only of Venezuelan government officials who work for particular Venezuelan ministries, while the Iran ban extends to all Iranians. SAC ¶ 108.
 The September 24 Proclamation fails to address other countries the State Department classifies as “terrorist safe havens,” including predominantly Christian countries such as the Philippines and Colombia.
 The stated reason for barring Iranian nationals from receiving visas -- purportedly because the U.S. government cannot accurately vet applicants due to noncooperation from the Iranian government -- makes no sense. The government of Iran has not had any role in vetting Iranian nationals to obtain U.S. visas for over 40 years. Iran and the United States have no diplomatic relations. Iranian
5 Alex Nowrasteh, Guide to Trump's Executive Order to Limit Migration for "National Security" Reasons, Cato Institute (Jan. 26, 2017). 6 See U.S. Dep’t of State, Bureau of Counterterrorism & Countering Violent Extremism, Country Reports on Terrorism 2016 (June 2016), https://www.state.gov/documents/organization/ 258249.pdf.
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nationals for decades have had to travel to U.S. consulates outside of Iran to apply for visas. The Iranian government provides no assistance in Iranian applicants for U.S. visas. Indeed, U.S. consultation with the Iranian government concerning visa applications from these individuals would potentially place these individuals in danger and will discourage Iranians from seeking visas. SAC ¶¶ 109 & 111.  There are news reports that the designated countries were selected, in part, due to political considerations rather than national security considerations. SAC ¶¶ 105106.  The ban takes no account and makes no allowance for individuals with bona fide relationships with entities or individuals in the United States. SAC ¶ 97. And even if a lesser level of scrutiny were to apply, Plaintiffs would prevail. Governmental action that is “inexplicable by anything but animus toward the class it affects . . . lacks a rational relationship to legitimate state interests.” Romer v. Evans, 517 U.S. 620, 632 (1996). A classification premised on discriminatory animus can never be legitimate or bona fide because the government has no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored minority. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). “The Constitution’s guarantee of equality ‘must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)). In short, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.” Romer, 517 U.S. at 634. As described above, the September 24 Proclamation is permeated by discriminatory animus. See supra at 14, 17. The government’s purported national-security justifications for the Executive Order ring hollow – this is evident in the nonsensical premise that the noncooperation of the Iranian government in visa issuance has any significance when the U.S. government has never consulted the Iranian government in issuing visas to Iranian nationals. It is also evident in
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the nonsensical decision to punish all Iranian nationals for the conduct of their government, and the disparate decision regarding the only majority Christian country on the list (where grievances with the Venezuelan government are targeted to select Venezuelan government officials). As with the prior travel bans, the purported national security justification for the September 24 Proclamation “is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under” federal immigration law. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Proclamation’s blanket discrimination is invalid.
Most importantly, on its face, the September 24 Proclamation purports to bar entry to individuals who “who have a credible claim of a bona fide relationship with a person or entity in the United States” in contravention of the Supreme Court’s guidance in Trump v. Int’l. Refugee Assistance Project, 582 U.S. ____, 137 S. Ct. 2080 (2017) (per curiam). The Supreme Court specified that the prior travel bans could not be enforced against workers who accept offers of employment in the United States or lecturers who accept speaking invitations because they have “bona fide” relations with a U.S. entity, nor against individuals with “a close familial relationship” in the country. Id. The September 24 Proclamation provides no reasoning, nor could there be any, for excluding such individuals.
Nor does the availability of a waiver change this analysis. The September 24 waiver system is identical to the one presented by the March 6 Executive Order, which the Supreme Court found could not be enforced against individuals with a bona fide relationship with a person or entity in the United States. More importantly, the waiver system is a “separate” system predicated on discriminatory animus which imposes burdens on Iranians and nationals of the other designated countries and their U.S. sponsors far more onerous than those imposed on other
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nationalities; as such, this “separate” system is “inherently unequal” and violates the Equal Protection Clause. Cf. Brown v. Board of Educ. Of Topeka, 347 U.S. 483 (1954).
In short, the Executive Order thus bears no “rational relationship to a legitimate governmental purpose,” Romer, 517 U.S. at 635, and instead reflects irrational, discriminatory fears.
C. The Proclamation Violates the Establishment Clause Plaintiffs are likely to prevail on their Establishment Clause claim. Both the January 27 and March 6 Executive Orders were found to violate the Establishment Clause because they were motived by a primarily religious purpose. Based on the evidence before it, the Fourth Circuit in IRAP determined that the government’s “stated national security interest” in the second Executive Order “was provided in bad faith.” 857 F.3d at 592. The court deemed it appropriate to apply longstanding Establishment Clause doctrine and “look behind” the Executive Order using the framework developed in Lemon v. Kurtzman to determine if it was motivated by a primarily religious purpose. Id. The Fourth Circuit determined that “[t[he reasonable observer could easily . . . understand that [the ban’s] primary purpose appears to be religious, rather than secular.” Id. at 595. The March 6 Executive Order, the court concluded, “cannot be divorced from the cohesive narrative linking it to the animus that inspired it.” The court ordered that the travel ban remain blocked as a violation of the Establishment Clause. Id. at 602. The September 24 Proclamation continues to violate Establishment Clause. The test remains whether the order is “motivated by a primarily religious purpose.” The addition of a sixth majority-Muslim country (Chad) does not change the anti-Muslim purpose of the government’s action. And the inclusion of a non-majority Muslim state (North Korea) and government officials from five Venezuelan ministries does not change the fact that the
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overwhelming majority of individuals affected by the September 24 Proclamation – over ninety-nine percent, are nationals of majority-Muslim countries. For example, in 2015, an estimated 70,000 visas were issued to nationals of the listed countries; of those 70,000 visas, nine were issued to nationals of North Korea. SAC ¶ 98.
Under the three-part test set out in Lemon v. Kurtzman, all government action must “(1) have a secular legislative purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not result in excessive entanglement with religion or religious institutions.” Bonham v. D.C. Library Admin., 989 F.2d 1242, 1244 (D.C. Cir. 1993) (citing Lemon, 403 U.S. at 612-13). When the government professes a secular purpose for an allegedly sectarian practice, courts must ensure that the government’s stated purpose is “genuine, not a sham,” McCreary, Cnty. v. ACLU of Ky., 545 U.S. 844, 864 (2005), taking into account the implementation of the policy, its evolution over time, and contemporaneous statements of relevant decision makers, Bonham, 989 F.2d at 1244-45. Thus, in McCreary, the Court considered the “evolution” of a Ten Commandments display as evidence that the government’s true purpose was sectarian. 545 U.S. at 850. And in Church of Lukumi, Justice Kennedy determined that a facially neutral set of ordinances were, in fact, a “religious gerrymander,” by examining “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision making body.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (Kennedy, J., joined by Stevens, J.); see also Bonham, 989 F.2d at 1244-45. A sectarian purpose in itself violates the Establishment Clause. See McCreary, 545 U.S. at 881.
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Here, the historical developments leading to the September 24 Proclamation’s implementation leave no doubt that its purpose is to discriminate against Muslims. As in McCreary, the policy now expressed in the September 24 Proclamation underwent an “evolution,” 545 U.S. at 850, in response to public criticism and successful legal challenges. The ban morphed from “a total and complete shutdown of Muslims entering the United States,” SAC ¶ 56, to a 90-day bar on all nationals from seven Muslim-majority countries entering the United States and a plan to prioritize Christian refugees, SAC ¶¶ 62-63, to a 90day bar on all nationals from six Muslim-majority countries entering the United States, SAC ¶ 81, to its current form: an indefinite ban on immigrant visas and most non-immigrant visas on nationals of six majority-Muslim countries, as well as a small handful of North Koreans and officials of five Venezuelan ministries.
President Trump’s own words make it clear that this evolution marks a change only in style, not in substance. Even after his revised March 6 Executive Order was enjoined, President Trump committed target nationals of “Islamic” countries, and promised a “much tougher” ban. SAC ¶¶ 88, 92, & 95. The evidence of the President’s purpose is overwhelming. It requires no “judicial psychoanalysis of [his] heart of hearts.” McCreary, 545 U.S. at 862. It has been broadcast—on the campaign trail, on Twitter, in interviews, speeches, and debates—for months. The September 24 Proclamation is nothing more than the newest iteration of President Trump’s campaign promise to keep Muslims out of this country, and it violates the Establishment Clause.
D. The Proclamation Violates Due Process Plaintiffs are likely to prevail on their Due Process claim. The Due Process Clause of the Fifth Amendment requires that the government, at a minimum, provide fair notice and an
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opportunity to be heard before denying constitutional and statutory rights. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976). In conjunction with the first travel ban, the Ninth Circuit correctly held that the January 27 Executive Order violated the due process rights of “lawful permanent residents[,] non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, refugees, and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” Washington v. Trump, 847 F.3d at 1166 (citations omitted). The September 24 Proclamation directly violates the rights of persons in the United States whose family members abroad are barred from entering this country.
The Due Process Clause bars any deprivation of life, liberty, or property without due process of law for “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvyda v. Daviss, 533 U.S. 678, 693 (2001); see also Plyler, 457 U.S. at 210. Many of the individual plaintiffs in the United States have applied for visas for family members to join them in this country. Exs. 4-8, 11-16. Decl. of Mohammed Reza Shaeri ¶¶ 14-18; Decl. of Mohammed Jahanfar ¶¶ 14-23; Decl. of Montra Yazdani ¶¶ 13-14; Decl. of Jane Doe #4 ¶¶ 5-11; Decl. of Jane Doe #13 ¶¶ 11-21 ; John Doe #10 ¶¶ 24-37; Decl. of Jane Doe #1 ¶¶ 11-18; Decl. of Jane Doe #14 ¶¶ 8-16; Decl. of Jane Doe #15 ¶¶ 13-14; Decl. of Shiva Hissong ¶¶ 12-13; Decl. of Sepideh Ghajar ¶¶ 11-24; The September 24 Proclamation deprives these Plaintiffs of a protected liberty interest in family integrity, “a right that ranks high among the interests of the individual.” Landon v. Plascencia, 459 U.S. 21, 34 (1982); see Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“[D]ue process right to family integrity or to familial association is well established.”). In additional, several Plaintiffs -- Jane Doe #1, Mohammed Jahanfar, and Jane Doe #13 – have
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identified how the government has interfered with their ability to get married, and another plaintiff (Mohammed Reza Shaeri) has asserted that the September 24 Proclamation will keep him from co-habitating with his spouse; the September 24 Declaration thus interferes with his constitutional right to marriage. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). II. PLAINTIFFS WILL SUFFER IMMEDIATE, IRREPARABLE HARM ABSENT
PRELIMINARY RELIEF Without this Court’s intervention, Plaintiffs will suffer immediate and irreparable harm as a result of the enforcement of the September 24 Proclamation. Where, as here, plaintiffs allege deprivations of constitutional rights, irreparable harm for purposes of a preliminary injunction is presumed. Statharos v. N.Y. Taxi & Limousine Comm’n, 198 F.3d 317, 322-23 (2d Cir. 1999). The “loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)). Moreover, “the inchoate, one-way nature of Establishment Clause violations” create immediate, irreparable injury. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) see also id. (“[W]hen an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place . . . .”). Where, as here, Plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the law “counsels in favor of finding that in the absence of an injunction, they will suffer irreparable harm.” IRAP, 857 F.3d at 602. Plaintiffs here face actual irreparable harm. The organizational Plaintiffs have already been forced to divert significant portions of their limited resources to respond to the September 24 Proclamation, just as they did to respond to the January 27 and March 6 Executive Orders. They have had to indefinitely suspend or substantially reduce their regular activities—including
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providing social and legal services, assisting new immigrants to the United States, and legislative and political outreach—while they sort through the implications of the Executive Orders and now the September 24 Proclamation. See Ex. 1. ¶¶ 27, 35-37, 39; Ex. 2. ¶¶ 40-42; Ex. 3. ¶¶ 32. 34-36 . Further, the Iranian American community for which the organizational Plaintiffs stand has experienced severe disruption to family ties, educational and business pursuits, and their efforts to contribute to U.S. civic society. See Ex. 1. ¶¶ 18-26; Ex. 2. ¶¶ 30-38; Ex. 3. 22-31. And the entire communication has been subject to the stigma associated with discriminatory animus directed by the most powerful officials of the United States government.
The individual plaintiffs have also suffered irreparable harm, as the travel ban separates their families, prevents them from marrying and cohabiting with their spouses, and limits their employment opportunities. The Ninth Circuit has identified these as “substantial injuries and even irreparable harms.” Washington v. Trump, 847 F.3d at1169. The Supreme Court necessarily agreed in holding that §2(c) of the second Executive Order, which suspended entry of nationals from designated countries for 90 days, may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. Trump v. IRAP, 582 U.S. ___, 137 S. Ct. 2080, 2088 (2017).
As detailed in the declarations and discussed elsewhere in this brief, the September 24 Proclamation threatens irreparable harm to the individual Plaintiffs, including barring the fiancés and spouses of plaintiffs Jahanfar, Shaeri and Jane Doe #1 from entering the United States, interfering with the wedding plans of plaintiffs Jahanfar, Jane Doe #1 and Jane Doe #13, barring the parents of plaintiffs Yazdani, Jane Doe #14, Jane Doe #15 from entering the United States to help raise their families or be cared for in their old age, barring the parents and family members of plaintiffs Hissong, Ghajar, Jane Doe #4, and John Doe #10 from visiting family in the United
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States, barring John Doe #9 from accepting his job offer, and barring John Doe #1 from renewing his work authorization.
In sum, the September 24 Proclamation will perpetrate irreparable harm on people “who have a credible claim of a bona fide relationship with a person or entity in the United States” by categorically determining they may not receive a visa because of their nationality. Trump v. Int’l. Refugee Assistance Project, 582 U.S. ____, 137 S. Ct. 2080, 2088 (2017) (per curiam). III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST SUPPORT
PRELIMINARY RELIEF The balance of equities and the public interest also support preliminary relief. “These [two] factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). The government and the public have no legitimate interest in enforcing unconstitutional laws or actions. See United States v. U.S. Coin & Currency, 401 U.S. 715, 726 (1971); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). Any purported “national security” justification for enforcing the September 24 Proclamation is a blatant pretext for invidious discrimination and provides no basis for categorically excluding the individual Plaintiffs and others from the United States on the basis of their religion or national origin (as a proxy for religion). Although the September 24 Proclamation cites concerns about the Iranian government, the Proclamation is not based on any evidence, much less any reasoned determination by the Department of Homeland Security or otherwise, that Iranian nationals should be deemed presumptive terrorists. Indeed, the September 24 Proclamation, like its predecessors, is contrary to longstanding U.S. policy and far more likely to harm than to advance interests of the United States. For decades, this nation has sought to promote democracy and religious freedom and to sanction
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human rights abuses in Iran. Consistent with these principles, the United States has recognized that it is in the national interest to provide shelter and legal protection to individuals fleeing persecution from the Iranian government, including in particular those who have been victims of “systematic, ongoing, and egregious violations of religious freedom.” U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 45 (Apr. 2016). Public opinion of the United States is higher in Iran than in any other country in the Middle East (other than Israel). C. Thornton, The Iran We Don’t See: A Tour of the Country Where People Love Americans, The Atlantic (June 6, 2012).
The U.S. Commission on International Religious Freedom has made clear that U.S. efforts with respect to Iran are about Iranian government policy and not the people of Iran: “[T]he United States continues to keep in place and enforce sanctions for Iran’s human rights violations, its support for terrorism, and its ballistic missile program. According to the State Department, these sanctions are intended to target the Iranian government, not the people of Iran.” U.S. Comm’n on Int’l Religious Freedom, 2016 Annual Report 48 (Apr. 2016).7 The State Department’s Human Rights Report on Iran criticizes the Iranian government because it “severely restricted freedom of speech and of the press and used the law to intimidate or prosecute persons who directly criticized the government or raised human rights problems.” U.S. Dep’t of State, Iran 2015 Human Rights Report 15, in Country Report on Human Rights Practices for 2015. Senator John McCain stated U.S. policy clearly in 2009: “The president and his administration should be at the forefront, calling on the Iranian regime to annul the fraudulent election, to restore the people's inalienable rights, and to allow peaceful protesters to voice their
7 The Commission also made clear that the importance of protecting the rights of Iranian citizens: The U.S. government should “continue to support an annual UN General Assembly resolution condemning severe violations of human rights, including freedom of religion or belief, in Iran and calling for officials responsible for such violations to be held accountable.” Id. at 49.
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opinions. . . . [B]y standing with the Iranian people as they pursue their legitimate rights we will demonstrate to them—and to the world—that American is more than its might.” Sen. John McCain, Speak Out for Iran and Its Democracy, Arizona Republic, Feb. 5, 2017.
In the face of all this, and without any basis, the September 24 Proclamation stigmatizes all Iranians—Muslim or non-Muslim, religious or secular—as presumptively subscribing to “radical Islam” and harboring terrorist intentions against the United States. This baseless stereotyping is an affront to the Iranian American community, who represent and foster those elements of Iranian society that are most likely to cherish the values of freedom and tolerance that this country has long represented. Slamming the door on Iranian individuals, with no regard to their personal circumstances, plays into the hands of hard-liners in the Iranian government, who have long used the United States—“the Great Satan”—as a foil to justify their repressive policies. The September 24 Order leaves Iranians who stand up to the regime out in the cold, and will likely encourage anti-Americanism in the region. None of those results serves the American public’s interest or our national security.
On the other hand, Plaintiffs have a vital, pressing interest in securing preliminary relief and in enjoining enforcement of a policy that infringes their constitutional rights or their “bona fide relationships” with individuals or entities in the United States . “The public interest and the balance of the equities favor preventing the violation of a party’s constitutional rights.” Arizona Dream Act Coalition v. Brewer, 818 F.3d 901, 920 (9th Cir. 2015). There are no other adequate remedies.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be granted. A proposed order is attached.
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Dated: October 12, 2017
Cyrus Mehri (D.C. Bar # 420970) Joanna K. Wasik (D.C. Bar # 1027916) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org
Hassan Zavareei (D.C. Bar # 456161) TYCKO & ZAVAREEI LLP 1828 L Street, NW Suite 1000 Washington, DC 20036 (202) 973-0900 (202) 973-0950 (fax) hzavareei@tzlegal.com
Adrienne D. Boyd (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP Suite 4400 370 Seventh Street Denver, CO 80202 (303) 863-1000 (303) 832-0428 (fax) adrienne.boyd@apks.com

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Sally L. Pei (D.C. Bar # 1030194) Sonia Tabriz (D.C. Bar # 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Susan S. Hu (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 (212) 836-8000 (303) 836-8689 (fax) susan.hu@apks.com
Counsel for Plaintiffs

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EXHIBIT 1

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,
v.
Donald J. Trump, President of the United States, et al.

Civil Action No. 17-255

Defendants.

DECLARATION OF THE PARS EQUALITY CENTER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Sarvenaz Fahimi, 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, and am competent to testify thereto.
2. I am the Senior Director of the Legal Department at Pars Equality Center (Pars). In this capacity, I oversee the work of all of attorneys and Department of Justice, Office of Legal Access Programs (formerly BIA) accredited representatives.
3. The Pars Equality Center is a 501(c)(3) non-profit dedicated to helping all members of the Iranian-American community and other Persian-speaking countries realize their full potential as informed, self-reliant, and responsible members of American society. Pars believes that learning and teaching the rights and responsibilities of citizenship in a democracy as well as the rules and rewards of entrepreneurship are the necessary ingredients for our success as a community. Pars achieves its mission primarily by 1

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providing extensive social and legal services out of community centers. The organization's Persian-speaking staff advocates for families and individuals in need with a strong focus on refugees, asylees, and those newcomers living in poverty. Pars is based in California. 4. While its focus is on the Iranian-American community, Pars does not close its doors to anyone seeking its services. Especially in its immigration services, Pars serves clients from various backgrounds and nationalities. In 2016, Pars provided 20,713 units of services across all of its locations, with the majority of clients of Iranian descent. 5. Among other things, Pars provides mentorship and career development for IranianAmericans. For example, Pars hosts a Silicon Valley career development techniques and best practices workshop, which covers resume writing, successful interviewing, information about the culture of the workforce in Silicon Valley, and how employees can make themselves an instant asset to potential employers. Pars also hosts a "Generation +" initiative that provides the younger generation of Iranians, both American-born and immigrants, with career mentors, peer mentors and career opportunities. Pars selects a broad array of mentors from the private, public, and art sectors, provides formal mentorship that connects younger Iranians with mentors that best fit that individual's needs, and organizes social events to allow members of the community to bring together the community and facilitate career connections. Through its work with Generation +, Pars acts as a catalyst for social, cultural and economic integration of Iranians speaking communities to achieve their highest potential.
1 A "unit of service" measures one service for example, one workshop, one immigration-related consultation, or one ESL class. One individual can receive multiple units of service from Pars.
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6. Pars provides various other social services to Iranian Americans and Persian speakers of all ages. Pars provides, among other things, English as a Second Language (ESL), citizenship, and resume writing/interview skills classes; computer training and access to employment resources including job fairs; assistance navigating the social and medical systems; and other services to improve the quality of the family's life in our community. Through the Kordestani Family Fund, Pars also invests in the education of Iranian American youth by providing a grant each year to a student of Iranian descent graduating from high school in California with specific plans to continue their education in a College or University in California. Pars also has a Senior Program for Persian speaking immigrants over the age of 55 which includes interactive programs, tours and picnics to provide an uplifting and inspiring environment that these individuals can call home away from home.
7. The legal services provided by Pars give community members the resources to become productive citizens, by educating and advocating on behalf of individuals in the community, and by representing individuals at no or low cost in immigration matters. The legal staff members at Pars are either licensed attorneys or accredited Department of Justice representatives, and they guide individuals through the immigration process and provide extensive legal services, including: citizenship, green card renewals, domestic violence based petitions, family relative petitions, travel documents, issues arising in the refugee context, and counselor processing.
8. Pars works with other organizations, such as the Iranian American Bar Association and the Public Affairs Alliance of Iranian Americans, across the United States to educate the
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community about relevant legal issues and advocate on behalf of Iranian Americans in the U.S.
Pars' Interest in and Concern About Enforcement of the Presidential Proclamation of September 24 and the January 27 and March 6 Executive Orders
9. Pars is vitally interested in and concerned about ongoing harm and impact resulting from a series of three linked Executive Actions restricting travel and immigration from Iran to the United States: (1) the original January 27, 2017, Executive Order, "Protecting the Nation from Foreign Terrorist Entry Into the United States" ("January 27 Executive Order") (2) the March 6, 2017, Executive Order of the same name ("March 6 Executive Order"); and (3) a proclamation issued on September 24, 2017, which partially went into effect on the same date, and is partially expected to go into effect as of October 18, 2017 ("September 24 Proclamation").
10.These Executive Actions have a highly negative impact on both the community that we serve as well as the mission and purpose of our organization. For the reasons discussed below, enforcement of the September 24 Proclamation will harm Pars' mission in multiple ways and has already forced Pars to scramble to address its effect, thus causing Pars to divert valuable resources away from its usual activities.
11.The September 24 Proclamation prohibits the issuance of visas to Iranian citizens indefinitely. The impact of this prohibition cannot be overstated. Based on my experience as Legal Director at Pars, I believe that the September 24 Proclamation will negatively impact visa holders residing in the United States who were planning to renew their visas; it will negatively impact Iranian Americans of all legal statuses who wish to host visitors, including family and friends, from Iran; it will negatively impact Iranian citizens,
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including graduating students and professionals, who wish to come to the United States for the very first time; and it will expose many Iranian Americans, regardless of legal status, to discrimination. 12.The vetting process for Iranians seeking visas to enter the United States has long been robust because Iran has a very secure documentation system. At birth, each individual is issued a birth certificate with a birth certificate number, name, place and date of birth, gender, and information relating to the individual's parents, including their names and residences. In addition to a birth certificate, each permanent resident of Iran above the age of fifteen is issued a National Identity Card by the Iranian Ministry of the Interior. The secure documents that Iranians are able to provide with their visa applications facilitate the thorough and reliable vetting of Iranians seeking to enter the United States. 13.The September 24 Proclamation seems to require that, in contrast to the vetting process in place prior to the January 27 Executive Order, the Islamic Republic of Iran be involved in the vetting of visa applicants from Iran to the United States. Yet in my opinion, involving the Islamic Republic in U.S. vetting is a dangerous, irrational, and illogical proposition. Many individuals seeking to come to the United States have allegiance to the United States. Those who are already living here want their families to join them. Yet they are being harmed by the U.S. government even those who are in opposition to the government of Iran. 14.As a result of this indefinite ban, our organization is unable on a very tangible level to provide competent services. The lives of people we are counseling are up in the air. Their families are being torn apart and there is tremendous uncertainty we are unable to address. For example, the standards given for seeking a waiver are vague. There is no
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policy explaining how it works and no certainty about who will qualify, which means it will cause even more chaos. People I speak with feel this means that 99 percent of waiver requests will be denied. We have no confidence this process will really permit family members in Iran or other individuals coming here for work to obtain a visa. 15.Our community and the people we are serving feel marginalized and afraid. People look at us differently because of the stigma of these Executive Actions. And this ban is, in my opinion, all for nothing. It does nothing to address the security concerns or other reasons it is supposedly being put into place. 16.The sequence of the three Executive Actions has continued to increase the impact on the Iranian-American community. It feels like the marginalization is getting worse between January and now. There is lot of fear and frustration. Even U.S. citizens and lawful permanent residents who are aware of their rights are becoming more afraid. Even leaving the country on a business trip seems risky to them. I still have to reassure them that there is no formal restriction on their travel. 17.In law school, I read cases like Korematsu v. United States and now I have to look at those precedents and wonder what will happen to us. It seems like despite everything we have learned about how a policy based on fear and animus of people of a certain nationality was a mistake, we might do something like that again. As a lawyer and as an Iranian-American this is very troubling to me. I never imagined in law school that cases like Korematsu would be directly at issue and relevant to my future work.
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Impact on Pars' Clients and the Broader Community of the Executive Actions
18.The psychological and emotional toll of the September 24 Proclamation has come into stark relief in conversations between Pars staff and Iranian Americans. Entire families are experiencing profound disruption.
19.Further, individuals now in Iran who have close ties to Iranian-Americans and other Americans in the United States (like fiancés or parents and their children) may be indefinitely separated from their loved ones. The September 24 Proclamation exacerbates the impact of the prior Executive Actions by turning the 120 day-ban on travel and immigration into an indefinite suspension, meaning anyone who was about to apply or in the visa application process may never be able to obtain permission to come to the United States. We have been counseling pregnant women with husbands still in Iran, and family members expecting to immigrate on Diversity Visas that have yet to be issued and now may never be issued.
20. In short, while Pars fights for families to establish themselves in their communities and for individuals to achieve their greatest career potential, the September 24 Proclamation is likely to cause long term family separation and a brain drain from the United States.
21. These impacts continued even after courts enjoined the January 27 Executive Order. Pars has been contacted by individuals who had completed consular interviews prior to the January 27 Executive Order but now find their applications languishing in Administrative Processing. Asylum applicants with pending asylum petitions contacted Pars because they are concerned about the status of their applications. Members of the community served by Pars who have submitted 1-130 petitions for alien relatives (immigrant family visa petitions) have seen their cases placed into administrative processing in the wake of
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the January 27 Executive Order. Despite numerous contacts to the relevant Embassies, these individuals are unable to move their petitions forward, get their cases released from administrative processing, or obtain any information about their cases. Similarly, United States citizens at various stages of obtaining K-1 fiance visas for their overseas fiancés have experienced longer than expected delays. Some cases that were progressing prior to the January 27 Executive Order have been placed in administrative processing and are still delayed. 22. While administrative processing is typical in some cases, the volume of cases that Pars staff have seen placed into administrative processing since January 27 is unusual, and, in the opinion of Pars immigration attorneys, likely due to the Executive Actions and despite judicial intervention. It seems like many more cases are being put into administrative processing than was the norm before January 27. In the past, we would see at least one visa for our cases issued every single week. My staff has informed me that since January 27, we have only seen one immigrant visa issued, and as far as I know, no one seeking a B2 visa who has contacted us at Pars has successfully obtained one. 23. Current visa holders have expressed to Pars staff that they have a serious fear of traveling due to the uncertainty of their ability to return to the United States. Some of these individuals are choosing not to travel even in emergency situations. They are concerned that the rules may change again without warning. 24. Legal team members at Pars continued to field many questions from individuals who are concerned about the effect of the prior Executive Actions on their lives even after courts have enjoined them. The individuals who reach out to Pars are worried, scared, and
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confused. In many instances, Pars has not been able to provide concrete answers or reassurance to them. 25. The Executive Actions have already had an immediate impact on the clients of Pars. Here are just some of the stories of our clients:
• A young married couple in their 20s cannot return to Iran due to persecution. The husband is Christian and an asylee. The wife was interviewed in July 2016 and her application remains pending in administrative processing. We are not aware of any reason her background would have triggered a hold. Despite Congressional requests to expedite a determination on her application due to the fragile mental condition of her husband, she has been unable to obtain a visa.
• We are representing U.S. citizens who are separated from their parents with severe medical conditions who have pending visa applications and are now facing significant uncertainty.
• One client is a refugee who cannot bring her husband to the United States because they cannot prove a bona fide relationship. They were both refugees in Turkey who lived there for 12 years. Due to Turkish law they were not able to get married, and the birth of their child was not properly recorded. Now the child faces major emotional issues over being separated from her father.
• Individuals who have experienced major life changes have missed saying goodbye to loved ones or hello to newborn family members.
26. The Executive Actions have made it difficult, if not impossible, for many individuals to plan their future lives in the United States. For visa holders as well as dual citizens and permanent residents, the September 24 Proclamation means that they may not be able to
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have their family members join them in the United States as planned. The vast uncertainty, confusion, and deep fear caused by the January 27 Executive Order and perpetuated by the March 6 Executive Order has already manifested itself in great harm to the communities that Pars serves as well as the organization's mission. That harm will only continue to deepen if and when the September 24 Proclamation is enforced.
Frustration of Mission Resulting from the Executive Actions 27. The goal of the day-to-day legal services that Pars typically provides to effectively use the immigration laws to advocate on behalf of immigrants, including immigrants from Iran, and to guide individuals through immigration processes — has been crippled over the last nine months, starting with the January 27 Executive Order and continuing to today. While Pars attorneys seek to provide concrete answers, it is very difficult to give competent legal advice because there is so much uncertainty. It is impossible for these attorneys to inform those who seek their services what to expect with their or their family members' pending visa applications, whether they should submit future petitions, whether current visa-holders with single-entry visas should travel outside of the United States for work or pleasure, and whether current visa-holders will be able to renew their visas to continue the lives they had planned in the United States. Even our very experienced immigration attorneys do not know how the new September 24 Proclamation will work. The assistance that Pars typically provides to individuals with their visa applications is severely hampered. 28. And there is absolutely no guidance regarding the waiver process, so the attorneys do not have any way to assist people. We do not know how the waivers will work in practice, including what documentation individuals will need to provide, when they should raise
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the issue or what standard will apply to the decision. Without this information Pars cannot properly advise individuals about even whether a waiver is a meaningful option for them. 29. Pars seeks to facilitate the social, cultural and economic integration of Iranian-Americans to achieve their highest potential while also staying connected to their Iranian heritage. However, the September 24 Proclamation, like the Executive Orders before it, falsely singles out Iranians in the United States and those seeking to enter as a terrorist threat. Such a negative label on the Iranian-American community has already sown fear and anxiety in the community we serve. The stigma and discrimination that is caused by the Executive Actions exacerbates the challenges that immigrant groups, especially immigrants from primarily Muslim countries like Iran, already face in the United States. 30. Pars also seeks to elevate Iranians and Persian speakers to achieve their highest career potential in the United States. However, the September 24 Proclamation blocks the entry of, or forces the departure of, many Iranians who would otherwise have contributed to the vibrant and creative economy of the United States. For example, based on Pars' programs relating to mentorship and career development, Generation +, and educational programming, I believe it is likely that the September 24 Proclamation will affect the decisions of employers, who may prefer not to hire or sponsor Iranian visa holders, or even legal permanent residents and dual citizens. In addition, the September 24 Proclamation will cause individuals with high levels of educational attainment - Master's and PhD degree holders who are applying for H1B, or other work-related visas - to be denied visas or for their visas not to be renewed. Some of these educated individuals may also choose to leave the United States, even if it means leaving behind promising careers
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or degree programs, in order to be reunited with family members who are not able to enter the United States. 31. The purposes of Pars' citizenship classes will also be undermined by the September 24 Proclamation, just as they were undermined by the prior Executive Actions. Pars teaches Iranian immigrants about the U.S. democratic system, and the rights and privileges that it bestows. The content of these classes is being undermined as teachings on the Constitution, fundamental rights and the democratic process are in conflict with what students see happening around them. 32. All of these Executive Actions share the same pernicious effects: they stigmatize and alienate the Iranian-American community and make many of its members feel as though the country they consider home is treating them like second-class citizens.
Diversion of Resources Resulting from the Executive Actions 33. Our organization suffered economic harm directly as a result of the January 27 Executive
Order and has been continuing to experience that harm for the last nine months. Upon signing of the January 27 Executive Order, our legal services staff received twice the typical volume of calls, emails, in-person questions and other inquiries. Individuals of all legal statuses — dual citizens, green card holders, visa holders, those seeking protected status (VAWA, U Visa, 10751 with waiver), refugees and refugee applicants, and asylees and asylum applicants, and others —called with fearful questions about themselves or their loved ones. Instead of our usual legal services, we focused almost completely on addressing unanswerable queries about the January 27 Executive Order. Our legal services team was inundated with constant telephone calls, emails, and messages.
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34. That impact has been renewed with each new issuance of an Executive Action restricting travel and immigration for Iranian nationals. For example, when the September 24 Proclamation was announced, we immediately got new inquiries over the phone and through our immigration lawyers. We rapidly put together an event that was also livestreamed online to try to answer questions.
35. In the week following the signature of the January 27 Executive Order, I was forced to devote dozens of hours of my time solely to dealing with Order-related issues. Pars resources have been diverted from our typical programming. We have spent significant time organizing with other groups and entering into coalitions to share information and be able to adequately inform the community about its effects.
36. As an example, one attorney at Pars has frequently been pulled away from the cases to which she was assigned in order to respond to the Executive Actions. After making one presentation on the earlier Executive Order she had to seek out the assistance of a psychologist who would counsel distraught individuals.
37. Another attorney had to devote significant time responding to queries received by Pars, instead of performing her regular job functions. Other staff members, particularly within Pars' legal services branch, have spent their time educating themselves about the Executive Actions and regularly posting online about it for the benefit of the impacted community Pars also is spending time and resources updating the website and providing information through Facebook and other social media platforms.
38. Pars staff members continue to spend time organizing and coordinating panels regarding the Executive Order generally, as well as "know your rights" talks related to the
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Executive Order. Pars staff is continuously in touch with the co-speakers and cosponsoring organizations involved in these events. 39. The Executive Actions have affected our ability to provide even a basic level of service to individuals on the day to day immigration filings we normally process. We have seen a steep dropoff in individuals seeking consultation and those who do face new restrictions and barriers in addition to the attorney time being diverted to respond to the Executive Actions. This reduction in core services will negatively impact our grant funding, some of which depends on meeting certain targets for counseling and filing. 40. We continue to expend a significant percentage of our resources responding to the Executive Actions, and we do not know when we will be able to return to our regular activities. 41. In summary: in the last nine months, the Executive Orders have caused, and continue to cause, profound psychological and emotional harms to the Iranian-American community. The fear and anxiety created by the January 27 Executive Order has now been increased by the indefinite ban of the September 24 Proclamation. These policies have or will separate and unmoor families. They have also put into jeopardy the economic security of the Iranian American community and the September 24 Proclamation is sure to cause a brain drain from the United States as many Iranian immigrants, refugees and Iranian Americans are forced to, or choose to, leave the country in search of more stable employment, reunification with their families, or both. The Executive Actions, including the September 24 Proclamation if and when it is enforced, have and will cripple core aspects of Pars' mission and wreak havoc on the organization's ability to continue with its usual programming, social, educational, and legal services.
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 16 of 80 1, Sarvenaz Fahimi, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 9th day of October, 2017, in San Jose, California.
Sarvenaz Fahimi
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EXHIBIT 2

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Donald J. Trump, President of the United States, et al.

)

)

Defendants.

)

No. 15-cv- 255 (TSC)

DECLARATION OF IRANIAN AMERICAN BAR ASSOCIATION IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Babak Yousefzadeh, hereby declare and state as follows:
1. I am over the age of eighteen years. I have personal knowledge of the facts set forth here or believe them to be true based on my experience or upon information provided to me by others, and I am competent to testify to them.
2. My name is Babak Yousefzadeh. I am the President of the Iranian American Bar Association (IABA). I have personal knowledge of the facts set forth in this declaration, or I believe them to be true based on my experience at IABA, information provided to me by others, or review of information and documents available to me in the course and scope of my position with the IABA.
3. The IABA is an all-volunteer non-profit, independent, and apolitical professional association operating under section 501(c)(6) of the Internal Revenue Code. It seeks to

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educate the Iranian-American community in the United States about legal issues of interest, advance legal rights of the community, and ensure that government officials and the public at large are fully and accurately informed on legal matters of concern to the Iranian-American community. The IABA also seeks to foster and promote the development and achievements of Iranian-American legal professionals, and encourage civic participation by such professionals in the United States. 4. Founded in 2000 with a single Washington, DC chapter and four members, the IABA now has additional chapters in Dallas, Los Angeles, New York, Northern California, Orange County, Phoenix, and San Diego. Currently, we have over 1500 members, including attorneys, judges and law students, and consist of the only national network of Iranian-American lawyers in the U.S. The IABA provides a formal mentorship program to law students and new lawyers, jobs board, and continuing education programs including a national conference. The IABA is involved in vetting potential candidates for the judiciary. The affiliated IABA Foundation has granted over two dozen scholarships to law students since it was established in 2013. 5. The members of the IABA Board of Directors are distinguished members of the IranianAmerican legal community. There is one board member for each local chapter, multiple at large members (depending on annual needs) and one student representative. 6. I am currently in my third term as President, and I am also a member of the Board of Directors, representing the Northern California Chapter. I have been a member of IABA for about nine years. I am also a Partner with the national law firm Sheppard, Mullin, Richter & Hampton, LLP, in their labor and employment practice group. In addition to my role in helping to lead the labor and employment group in the San Francisco office, I
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am also in charge of recruiting new associates for the San Francisco office, and in charge of running the associate training program for the labor and employment associates firmwide. I have also received the Diversity Leadership Award from the Bay Area Minority Bar Association. 7. In addition to my role at IABA, I have a personal stake in ensuring the United States applies its immigration practices fairly to Iranian nationals and provides asylum to those legitimately fleeing persecution. My family had to leave Iran for Switzerland in 1984 when I was only seven years old, sought asylum in Germany and ultimately sought and obtained political asylum in the United States after a two-year process. 8. My family was forced to leave Iran because of my father's opposition to the then-newlyformed government of the Islamic Republic of Iran. My father opposed the Shah's regime and supported democratic change. However, based on what I have learned, in the unrest following the revolution, there was a suppression of those who sought a democratically elected civil government and additional liberties, including by means of imprisonment and extra judicial executions. At the time, my father was politically active. His political circle was under a severe threat, and people he knew and associated with had been imprisoned and executed. Even though they did not want to leave their country, my parents decided the risk of staying was too great. My mother, who was a school teacher, my 13-year sister and I left immediately. My father was only able to follow with a great deal of difficulty several months later. If we were not able to leave the country, I fear my father would have perished. 9. I came to the United States in 1986 and was a permanent resident until 2001, when I became a naturalized citizen. As a child and young adult, I did not perceive much
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difference between being a permanent resident and a citizen as far as I was concerned my family and I were like other Americans. 10.Unfortunately, my family's story of emigration from Iran is not unique. In meeting and talking with Iranians of my generation who now live in the United States, I found that after the revolution, a lot of us came here by seeking asylum, and often going through countries like Germany that opened their borders to us.
IABA's interest in and concern about enforcement of the Presidential Proclamation of September 24 and the January 27 and March 6 Executive Orders
11. The IABA is vitally interested in and concerned about ongoing harm and impact resulting from a series of three linked Executive Actions restricting travel and immigration of Iranian nationals to the United States, consisting of: (1) the original January 27, 2017, Executive Order, "Protecting the Nation from Foreign Terrorist Entry Into the United States" ("January 27 Executive Order") (2) the March 6, 2017, Executive Order of the same name ("March 6 Executive Order"); and (3) a proclamation issued on September 24, 2017, which partially went into effect on the same date, and is partially expected to go into effect as of October 18, 2017 ("September 24 Proclamation"). As President of IABA I have worked with our chapter presidents to coordinate our national emergency response, including sending teams of IABA lawyers to airports around the country when the January 27 Executive Order was first announced, and providing legal services to individuals in distress from the Executive Actions throughout this time period. Few people in the country have learned about the harsh consequences of the Executive Actions as I have in my capacity as IABA President.
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12.The purpose and effect of these Executive Actions is to bar individuals from temporary or permanent entry into the United States from majority-Muslim countries, specifically Iran, for no other reason than their identity as nationals of majority-Muslim countries and nationals of Iran. The discriminatory policy of exclusion carried out under these Executive Actions has prevented numerous Iranian nationals wishing to relocate to or visit the United States for work, travel or study to do so, and is causing individuals now in Iran and other places outside the U.S. (like Europe or Canada) to question whether they should even attempt to pursue opportunities to come here or take their talents and contributions elsewhere.
13.This policy, including the chaotic implementation of the January 27 Executive Order, has sent a chilling message to Iranian Americans (including permanent residents or current visa holders already in the United States) that their ability to freely travel abroad and return to the U.S. can be revoked on a whim. Even those members of the IranianAmerican community who are U.S. citizens feel targeted by the American government.
14.Now that the September 24 Proclamation indefinitely suspends virtually all travel and immigration to the United States by Iranian nationals except for certain student visa holders, members of the Iranian-American community here in the United States face long-term separation from their family members, and an increasing sense that these Executive Orders are expressly targeting Iranians and Iranian nationals. The animus of the original policy and its subsequent iterations has continued to send the message that Iranian-Americans and Iranian nationals are potential criminals or terrorists merely by virtue of their nationality despite any legitimate evidence that we are (or have historically been) a threat. This final determination, to permanently exclude the tens of thousands of
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Iranian nationals who come here every year to visit family, travel, and work, despite our positive impacts on American society and the American economy, makes the members of our community now living in the United States feel like second-class citizens. 15.In addition to the Executive Actions themselves, associated actions of the U.S. State Department and the Department of Homeland Security Office of Customs and Border Patrol ("CPB") have harmed and unfairly restricted Iranian Americans. For example, the State Department "provisionally revoked" any immigrant and nonimmigrant visas held by any national of Iran or the other countries covered by the January 27 Executive Order without disclosing the action or providing notice. The U.S. government also communicated directly with international airlines instructing them not to board passengers holding these visas without communicating with travelers or the public. And individuals currently navigating the visa application process, which is supposed to be proceeding normally under existing court orders for many affected individuals, have nonetheless received conflicting information, experienced significant delays, and faced questions about religious beliefs and other inappropriate barriers to obtaining visas. Applications remain in Administrative Processing for extended and indefinite periods without a final determination. 16.The IABA is vitally interested in and concerned about the illegal and discriminatory policy of the September 24 Proclamation, arising out of the January 27 Executive Order and continuing through the March 6 Executive Order and the present. It subjects our members, and their families, friends and fellow members of the Iranian community in the United States and aboard to direct and indirect restrictions on their ability to work, travel, study, live, and unite with family members in the United States.
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17.This policy of total exclusion continues to adversely affect our members as well as the mission and purpose of our organization. It has already forced IABA to divert substantial resources to combating the pernicious effects of the policy.
18.In this statement, I first explain why enforcement of these Executive Orders against the Iranian community and IABA's members is improper and arbitrary. I provide a summary of the hundreds of reports we have taken from individuals denied entry to the United States, subjected to additional delay, experiencing confusion and concern about their status, or otherwise impacted by the Executive Orders. I then explain the economic harm that enforcement of the Executive Orders has caused, and will continue to cause, to our organization.
Impact of the Indefinite Ban on Travel and Immigration by Iranian Nationals on the Iranian-American Community 19.Based on the many individuals who have contacted the IABA since January 27, it is clear
that the September 24 Proclamation, the two Executive Orders, and the broader policy of exclusion are sowing fear and confusion in the Iranian-American community This policy has unfairly singled out Iranian Americans, despite their deep ties to this country. And as the policy has progressed through its various phases, the impact on Iranian Americans and Iranian nationals has only increased. The Iranian-American community is by far the largest community harmed by the September 24 Proclamation of all the listed countries. 20. The policy has separated families and created significant uncertainty about the ability of Iranian-Americans to maintain family ties. It has prevented U.S. citizens who are married or engaged to Iranian nationals from feeling secure about maintaining a normal family life together. It has left people who sold their homes and possessions in preparation to immigrate in limbo. Families have been separated and Iranian Americans living in the
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United States are now concerned about their ability to visit or help family members in Iran, or to have their family members travel here to support them with new births and other family responsibilities. 21. The Executive Orders treat the Iranian-American community, estimated to approach 1 million people, as less than fully American despite the many U.S. citizens and lawful permanent residents who have made significant contributions to the United States through their work, study and participation in community life for decades. Iranian Americans have contributed to many aspects of American society including public and military service. Without any basis or justification, the exclusionary policy paints all with the same brush. It effectively categorizes everyone of Iranian descent as a potential terrorist and therefore inherently dangerous. But according to a study conducted by the CATO Institute that reviewed data from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran -- or any of the other countries specified any of these three Executive Actions restricting travel and immigration. Indeed, there is no relationship between the nationality of individuals who did commit fatal terror attacks in the United States and the countries subject to travel and immigration restrictions. 22. Further, the stated justification contained in the September 24 Proclamation and the March 6 Executive Order, that Iran is a state sponsor of terrorism, makes little sense. All of the examples of Iran's support for terrorism that the U.S. government has identified in making this designation involve support for or engagement in activities with individuals
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who are non-Iranian in countries outside of Iran other than the U.S.' Banning all entry of Iranian nationals into the United States would have zero impact on the cited activities of the Iranian government and does nothing to protect anyone in the United States. Further, it is counterproductive since it undermines those striving for increased democracy in Iran. The September 24 Proclamation adds a new rationale, stating that "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." However, this rationale does not explain why or how that requires an indefinite bar on any travel or immigration by Iranian nationals, especially given that those factors have all been true for the many years that Iranian nationals have been traveling to the United States without raising national security concerns. 23. Comparing the treatment of Iran to that of Venezuela in the September 24 Proclamation shows there is a less discriminatory alternative to address these security concerns. The September 24 Proclamation cites very similar security concerns - failure to cooperate in identifying security risks or in receiving nationals subject to final orders of removal, and "failure to satisfy at least one key risk criterion," with respect to Venuezela. However, in that case, the September 24 Proclamation only suspends travel or immigration of government officials who are derelict in cooperating, not the regular citizens seeking to visit or relocate to the United States, while stating that "nationals of Venezuela who are
U.S. Department of State, Bureau of Counterterrorism and Countering Violent Extremism, Country Reports on Terrorism 2016 (June 2016), available at https://www.state.govidocumentsforganization/258249.pdf.
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visa holders should be subject to appropriate additional measures to ensure traveler information remains current." 24. Iran has a stable government with no active conflict zones and a robust state bureaucracy that can issue verified birth certificates and other certified identity documents. For four decades, individuals seeking immigrant and nonimmigrant U.S. visas, who have the burden to establish their identity to consular officials, have been able to provide this documentation without apparent incident. To the extent they cannot provide appropriate documentation to the satisfaction of consular officials, visas can be (and are) denied. No blanket prohibition of all visas is justified. Further, to the extent there are in fact bona fide national security concerns about any individual Iranian nationals, why would that require a complete and indefinite suspension of all visas for all Iranian nationals, rather than a targeted approach plus additional measures, such as those applied to Venezuela? 25. I have heard the numerous statements from President Trump about wanting to exclude Muslims from entry into the United States. I see that he has done so by naming everyone from specific majority-Muslim countries, regardless of the diversity of people and circumstances of those people. This is inconsistent with America's long-standing policy to strengthen democratic institutions; and its stated support for Iranian dissidents and religious minorities, and reflects in my mind that these Executive Actions are not meant to address a meaningful threat from Iranian citizens but simply to go after Muslims or those perceived Muslims as a group and Iranians as a nationality. 26. The specific and increasing targeting of Iranian nationals, combined with illogical reasons provided for them and the shifting rationales for the policy from the campaign statements, to the January 27 Executive Order, to the March 3 Executive Order, and now
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to the September 24 Proclamation are all evidence of pretext for discriminatory intent. The altering reasons for enforcement of a policy on the basis of national origin can be, and often is, circumstantial evidence of discriminatory intent. Particularly given the weak and conflicting rationales offered for including Iran in this policy, I believe there is something at work other than national security interests, and that the offered (illogical and shifting) reasons are merely a pretext hiding the real, discriminatory reason for the policy of exclusion a reason President Trump has previously stated publicly. The September 24 Proclamation includes Venezuela and North Korea, in an apparent attempt to provide cover for the anti-Muslim and anti-Iranian animus of the underlying policy However, the inclusion of these two countries is essentially a pretext, given how few individuals from those countries would actually be impacted. 27. Finally, with respect to Iran, this policy is an indefinite and total ban. There are no diplomatic relations between the United States and Iran. Absent regime change, the government of Iran will never satisfy the stated requirements for cooperation. As a consequence, families will not be able to maintain ties, and the United States will lose the benefit of the lawyers, doctors, business investors and numerous others excluded by this discriminatory policy. 28. Although the September 24 Proclamation promises that the State Department will establish a waiver process, the presence of this separate and unequal waiver provision does not address the discriminatory impact of the indefinite and total ban. The default assumption is no visa should be issued, with a case by case exception based on three criteria that are hard to reconcile. For example, the requirement of showing an "undue hardship" will be extremely difficult to meet, and will effectively assure the denial of
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work visas and travel to connect with family in almost all circumstances. And I do not understand how anyone is supposed to show that their entry into the United States (e.g., to visit family or start a job work) would be in the national interests of the United States another required criterion. 29. There are no apparent guidelines for applying for or obtaining a waiver, and even attempting this process will impose an unknown period of delay and additional costs with no guarantee of success. Iranian Americans and Iranian nationals seeking to use this procedure do not know how to apply for an exception or what documentation to provide. I am concerned that many people who are denied under the policy of exclusion will not have the information or resources to pursue case by case waivers. Indeed, currently, even under the existing court injunctions, Iranian visa applicants are facing significant delays and confusing instructions, providing little comfort that the waiver process will ameliorate the irreparable harms of this policy.
Reports to IABA on Individual Impacts of the Indefinite Ban on Travel and Immigration from Iran
30. Since January 27 and continuing to today, our chapters have been on the front lines at airports and responding to emails, calls and social media postings from Iranian Americans and Iranian nationals affected by the three Executive Actions. We have invited individuals to file reports with us, and have received over 600 individual reports, although not all are complete.
31. We have received over 100 new inquires since the September 24 Proclamation was announced from individuals concerned about pending visa applications and the Proclamation's impact on fiancé visas for planned weddings, family support needed for
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impending births, future job prospects, and other close ties with people or entities in the United States. 32. Throughout this entire period and continuing until today, we are receiving inquiries from individuals in the U.S. current visa holders but also lawful permanent residents and even U.S. citizens who are concerned about the stability of the lives they have been building here in America. These government restrictions continue to have a chilling effect on Iranian Americans who are U.S. residents and citizens and who need to be able to freely leave and return to the United States. We continue to hear from individuals who are cancelling or delaying travel outside the country - travel that is important or necessary to their jobs and maintaining ties with older or ill family members. Even though the policy does not formally apply to them, they are increasingly concerned about leaving the country and not having certainty they will be able to freely return. 33. The earliest reports show the chaos and confusion of the disastrous implementation of the January 27 Executive Order. We were contacted by individuals denied entry to the United States under the January 27 Executive Order, including persons who were not permitted to board flights at all despite having valid visas or other authorization to enter the United States - and dual citizens and green card holders who arrived at U.S. airports and were turned back and put on flights out of the country. Green card holders and visa holders reported delays, more intrusive questioning or other hurdles upon arrival, including reports filed after multiple courts had enjoined the provisions of the January 27 Executive Order. Individuals directly impacted by the State Department's secret order revoking visas and instructing airlines not to board any Iranian visa holders on flights to
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the United States contacted us including a group of 110 visa holders being denied boarding to the United States. 34. And even as courts began to limit the impact of the January 27 Executive Order, and blocked much of the March 6 Executive Order from going into effect, we continued to receive reports showing that for many Iranian nationals and members of the IranianAmerican community, there was already a de facto ban on their ability to obtain immigrant and non-immigrant visas. 35. We have heard from individuals or their attorneys regarding visa applications that were accepted but that appear to be on hold without any progress for months. We have heard from numerous individuals that the final "Administrative Processing" step, which is supposed to be completed within 60 days, has been effectively turned into an indefinite hold on any final determination about the approval or denial of a visa.2 Failing to move forward with the normal process is impacting not only foreign nationals seeking to travel to the United States for work, school or family reasons, but also the U.S. businesses, schools, residents and citizens who are depending on their ability to do so. Given the existing judicial orders there is simply no reason the State Department and other U.S. government entities should be slow-walking any visa applications. Some individuals who had visa applications progressing after courts lifted the current restrictions imposed by the January 27 Executive Order have still not received visas despite the court orders enjoining the March 6 Executive Order. 36. We have also learned that U.S. Consulates where people of Iranian descent often obtain visas to the United States such as Dubai have had extensive delays in granting visa https://travel.state.govicontentivisas/en/general/administrative-processing-information.html
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interviews. We have further learned that visa applicants are improperly being asked about their religious beliefs and are receiving conflicting and confusing information about their status, necessary documentation and how to proceed with their applications. We received reports from individuals still in Iran who had interview dates cancelled by the January 27 Executive Order without being given an opportunity to reschedule. Others have received interviews, but were immediately told their visas were not going to be approved, without further explanation. These include individuals with close ties to the United States who should be subject to the same guidelines as non-Iranian visa applicants. 37. This policy has a particularly harmful impact on refugees seeking a safe haven from violence and persecution. One IABA staff member who made contact with an Iranian family learned they had fled to Turkey to escape reported political persecution in Iran. The family members had been accepted as refugees under the U.S. Government's Refugee Assistance Program and were awaiting safe passage to the United States. As a result of the January 27 Executive Order, the family had been stranded in Turkey without proper accommodation. Within a few hours, the IABA staff member used IABA funds to pay for their stay at an Istanbul hotel and arranged for them to travel by bus to Istanbul. She also purchased them a plane ticket to the United States after a United States federal court temporarily restrained enforcement of the EO. We have heard from refugees who are in difficult and dangerous situations but remain in limbo unable to proceed with their applications or obtain approval to travel to the United States. 38. News reports and the reports from many individuals who have contacted us since President Trump signed the January 27 Executive Order make clear how the arbitrary and
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inconsistent actions of the CBP's enforcement have harmed Iranian nationals. News accounts from Iranians with otherwise valid immigrant and nonimmigrant visas or green cards include being denied entry and forced to board flights out of the country, being detained for extremely long periods of time, and attempting to coerce permanent residents into signing away green cards.3
Harm to IABA and Its Mission
39. These Executive Actions are having a severely negative impact on the mission of our organization. As an organization that supports the rule of law and whose members are practicing attorneys and judges, the IABA is particularly distressed about reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who properly followed all procedures necessary to obtain valid permission to enter the United States have faced arbitrary, unjust and discriminatory restrictions on their rights.
40. Further, because we are an association of lawyers specifically, we have dropped everything to focus on providing legal assistance and support to the Iranian-American community and Iranian nationals. The vagueness and ambiguity of these policies, and the continually shifting rationales and unclear requirements, frustrate these efforts and prevent our attorneys from informing those who seek their services what to expect with
3Natasha Bertrand, Lawsuit: Dozens of Immigrants Tryng to Enter the U.S. Coerced Into Giving Up Visas and Green Cards After Trump Travel Ban, Business Insider (Feb. 3, 2017), available at http://www.businessinsider.com/trumpimmigration-ban-travel-ban-2017-1, Brenda Gazzar and Cynthia Washicko, Thousands Protest Trump's Immigration Order at LAX, Los Angeles Daily News (Jan. 29, 2017), available at http://www.dailynews.com/generalnews/20170129/thousands-protest-trumps-immigration-order-at-lax, Lives Rewritten With the Stroke of a Pen, New York Times (Jan. 29, 2017), available at https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html? r=0.
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their or their family members' travel plans and pending visa and green card applications. The Executive Actions and the associated actions of the State Department and CBP have created incredible chaos and many potential legal challenges as well as the need to answer hundreds of inquiries about whether individuals can legally travel to or outside the United States. 41. The continuing efforts to ban travel and immigration for Iranian nationals to the United States has completely overwhelmed our limited resources for the last nine months and continues to do so today. In the wake of the September 24 Proclamation we are spending 30-40% of our organization's resources to respond to this attack on our mission and support our members and the broader community. 42. In early January, our organization set its goals - such as improving our infrastructure (including our website), updating our bylaws, increasing our social media presence and improving our services for members. We had specific plans to increase our membership and engage in fundraising. Just a couple of weeks later we found that all our resources had been diverted to combat the initial impact of the January 27 Executive Order and all our plans had been placed on hold. Many of those plans remain on hold to this day, or have been severely delayed. 43. I have personally devoted extensive time to respond. In the initial weeks, when the chaos at the airports started on the morning of January 28, I was spending 6-10 hours per day. While the specific demands have ebbed and flowed depending on the status of the policy and the legal challenges, it has continued to impact my time and our organization continuously since that day. Over the weekend of September 25-26, as the new policy was announced, I and the other leadership of the IABA again sprung into immediate and
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intensive action to respond and at the moment I am spending 3-6 hours per day on a voluntary basis at the expense of my job and my other IABA commitments. 44. I am personally reviewing each new policy, including the most recent September 24 Proclamation, and each new court decision, and trying to coordinate responses by the IABA National, local chapters, and coalition partners. I am coordinating our response across multiple cities. I am coordinating with organizations like the American Civil Liberties Union, the American Immigration Law Association, the National South Asian Bar Association, the Asian Law Caucus, and other bar associations, as well as Iranian American advocacy and community groups. I am also communicating with our chapters who are impacted, and dealing with significant media inquiries. I am also personally responding to many calls and emails from people impacted by the EO and drafting statements and other information to help them. 45. Our entire Board and many of our members are also devoting significant time on a voluntary basis to trying to reach people and represent them, answering questions from travelers and their loved ones, and particularly in the early days, trying to follow up on reports of people being transferred or detained. We are doing legal research on cases and responding to individuals outside the US. Our organization has also devoted significant resources to drafting materials to inform the community, including FAQs, and developing forms and databases to track people who are impacted. Local chapters have been spending time posting information on social media, particularly Facebook, and handling responses. Due the vague language in all of the Executive Actions, the chaos and confusion around implementation of the January 27 Executive Order, and the unclear
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impact of the subsequent Executive Actions, it has been extremely challenging to provide appropriate counseling and advice to individuals in need.
46. Despite the court orders enjoining the January 27 Executive Order and preventing the March 6 Executive Order from going into effect, we have continued to respond to questions from individuals and family members who are affected, continuing to maintain our database of reports, and staging outreach events and "Know Your Rights" presentations to help keep our community informed in collaboration with other minority bar associations. We reissued our reporting form when the September 24 Proclamation was announced and have been inundated with new inquires and questions.
47. At our chapters, members of our local Boards are also devoting time to respond to the Executive Order. The seven members of our Board who represent local chapters have all been working on this issue over the last nine months, putting in significant time both on the national level and in local coordination. The remaining other five Board representatives are all helping in some capacity to support this work.
48. We are spending a fair amount of money and resources on our continued efforts to respond to the Executive Actions, including updating our website in order to get information out, and have had to defer our plans to conduct fundraising. IABA has continued to devote resources to digital tools and online information, including setting up a You Tube channel and making short videos to answer questions. We are continuing to write new scripts and "know your rights' memos. We have translated our online FAQs into Farsi and continue to update the website.
49. Finally, we have been devoting resources for some time to adapt to the constant prospect of changing rules. We have set up protocols and put a structure in place to try to avoid the
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chaos. We have created lists of people available to go to airports, serve as a liaison with Customs and Border Patrol, and serve as translators. We are also working with minority bar associations and our members to ensure there are lawyers available to represent people with specific legal needs. We have created a universal intake list and an online form to securely track issues in constant preparation for potential new issues arising under the sequence of Executive Actions. 50. When the September 24 Proclamation takes effect, it will maintain a ban on Iranian nationals and Iranian Americans. The discrimination and animus based on religion and national origin under this policy will continue to demean and stigmatize the IranianAmerican community. This new Executive Action still fails to explain why people of Iranian descent pose a greater risk to Americans than individuals from other nations not targeted by this ban. The continuation of this policy of exclusion will continue to adversely impact U.S. businesses and U.S. based families. 51. The discriminatory restrictions embedded within both Executive Orders are continuing and will continue to interfere with our mission to uphold the legal rights of Iranian Americans and support the many important contributions of Iranian-American lawyers and legal professionals to American society. 52. At this time, we do not expect this pressure to lift and we do not know when we can return to the regular work of our association and our normal services we provide to our members.
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 38 of 80 I, Babak Yousefzadeh, declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge. Executed this 9th day of October, 2017, in San Francisco, California.
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EXHIBIT 3

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

v.

Donald J. Trump, President of the United States, et al.

)

)

Defendants.

)

No. 15-cv- 255 (TSC)

DECLARATION OF THE PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Leila Golestaneh Austin, hereby declare and
state as follows: 1. I am over the age of eighteen years. I have personal knowledge of the facts set
forth here or believe them to be true based on my experience or upon information provided to me by others, and I am competent to testify to them.
I. Background Information on the Public Affairs Alliance of Iranian Americans (PAAIA) 2. I am the Executive Director of the Public Affairs Alliance of Iranian Americans
(PAAIA). PAAIA, Inc. is a 501(c)(4) nonprofit, bipartisan, non-sectarian, national membership organization with an affiliated 501(c)(3), IA-100, Inc. I have been the Executive Director at PAAIA since February 1, 2015.
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3. Because of my position as Executive Director, I know about the history and background of PAAIA as well as the organization's mission and purposes. I am also involved in the day to day operations of PAAIA, and thus am very familiar with our current expenses and resources. I oversee the programs and activities sponsored by PAAIA and am either involved directly or indirectly with the publications PAAIA releases or otherwise contributes to.
4. The 501(c)(3) of PAAIA has an exclusive membership comprised entirely of Iranian Americans. All of the approximately 50 members of the PAAIA 501(c)(3) are either U.S. citizens or legal permanent residents and almost all reside in the United States. Membership in the 501(c)(3) is by invitation and invitees are individuals who have demonstrated leadership in their respective fields, are active in the Iranian-American community, and are willing to commit their resources in the promotion of PAAIA's goals and programs.
5. The 501(c)(4) of PAAIA also has members who register online with the organization. Members can elect online to register for either the free membership, the $100 Supporters members, the $1,000 Ambassador's Circle, the $2,500 Congressional Club membership, or the $5,000 National Leadership Circle membership. In addition, PAAIA has 18,645 individuals on our mailing list who receive our communications, 8,452 of whom have signed up under the free membership program and have the option to donate to certain programs.
6. As explained in more detail below, PAAIA engages in many programs and activities which are developed and implemented by a staff located in Washington, D.C. Currently there are three full time PAAIA staff members, including myself, and two part-time university students working as staff members.
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II. Mission & Purpose of PAAIA
7. PAAIA was founded to represent and advance the interests of the IranianAmerican community, which is estimated to be a population approaching one million people, a large portion of which are citizens or permanent legal residents. Iranian Americans are patriotic and have served in all branches of the military and many have dedicated their lives to public service. Working in tandem with the community at large and with other organizations, PAAIA has effectively promoted the role of Iranian Americans in the social, cultural, and economic tapestry of the United States. Serving the interests of Iranian Americans and representing the community before U.S. policymakers and the American public at large, it works to foster greater understanding between the people of Iran and the United States, expand opportunities for the active participation of Iranian Americans in the democratic process at all levels of government and in the public debate, and provide opportunities for advancement for our next generation.
8. Since its inception in 2008, PAAIA continues to carry out its mission by engaging in programs and activities throughout the United States to benefit Iranian Americans and promote a positive image of Iranian Americans. For example, PAAIA has implemented programs such as Passing the Torch of Success, the Nowruz Project, Nowruz on Capitol Hill, Cyrus Cylinder Tour at the Asian Art Museum in San Francisco, and A Thousand Years of the Persian Book at the Library of Congress in Washington, D.C., all of which portray a more accurate image of the Iranian-American community to the general public, policymakers, and lawmakers.
9. PAAIA also fights discriminatory and harassing treatment towards Iranian Americans and stands up for the rights of Iranian Americans by working on issues such as addressing inflammatory remarks about Iranians made by a retired Stanford faculty member;
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ensuring that the professional networking website, LinkedIn placed Iran back on their education drop-down menu from where it had been removed; and working with the American Values Network (AVN) to have them drop an anti-oil ad campaign that targeted Iran in favor of a new concept that promotes clean energy but shields innocent Iranians and Iranian Americans from a bad image. In more recent years, PAAIA has written to Chancellor Kumble R. Subbaswamy, of the University of Massachusetts, Amherst, expressing disapproval of the University's new policy which banned Iranians from enrolling in graduate engineering programs and sponsored a letter signed by 37 prominent Iranian Americans urging the 2016 presidential candidates to refrain from broad generalizations about the Iranian people when discussing the prospective nuclear agreement taking shape between the P5+1 and Iran. In 2015, PAAIA launched a National Communications Campaign to inform the general public as well as U.S. lawmakers about the Iranian-American community's broad support for the Iran Nuclear agreement.
10. PAAIA also continues to educate the general public, lawmakers, and policymakers about the Iranian-American community. For example, in May 2014, PAAIA released a report, "Iranian Americans: Immigration and Assimilation," available through PAAIA's website at http://paaia.org/wp-content/uploads/2017/04/iranian-americansimmigration-and-assimilation.pdf (copy supplied as Attachment 1). This report is the first in a series of three reports providing more in-depth information about Iranian Americans, which discussed among other things the three major waves of Iranian immigration to the United States, self-identification of the Iranian American community, and typical benchmarks of assimilation. As another example, in June 2015, PAAIA released its 2015 Survey of Iranian Americans, which was presented in a congressional briefing and released to the public at large in connection with a panel discussion hosted by PAAIA on the Iran nuclear negotiations. PAAIA conducts this
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survey annually, and the 2017 Survey of Iranian Americans is available at http://paaia.org/wpcontent/uploads/2017/07/2017-PAAIA-Survey-of-Iranian-Americans.pdf. These are just a few examples of the numerous publications about and on issues concerning Iranian Americans that are released by PAAIA every year.
11. Because one of PAAIA's key initiatives is leadership-building, PAAIA operates a number of youth programs to encourage future Iranian American leaders. PAAIA's youth programs include sponsoring public service fellowships for Iranian Americans throughout the United States and helping young Iranian Americans obtain internships with legislative offices in Washington D.C.
12. PAAIA has been featured in national and international print and online news media. The organization writes news articles and monitors the media reports on Iranian Americans. PAAIA is also viewed by Iranian Americans as a source of information about issues impacting the community.
III. PAAIA's Promotion of the Iranian American Community
13. According to PAAIA's 2014 report on Iranian Americans: Immigration and Assimilation, while the first known Iranian American, Mirza Mohammed Ali (better known as Hajj Sayyah, "The Traveler") arrived in the United States in approximately 1867, the first wave of Iranian immigration to the United States did not occur until the 1950s. PAAIA's report explained that most Iranian Americans arrived in the United States during the second wave of migration from 1979 to 2001 and were fleeing oppression in Iran. The report went on to describe how these second-wave Iranians, as opposed to earlier immigrants, were more likely to identify themselves as exiles or political refugees.
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14. PAAIA has also published reports documenting how upon arriving in the United States Iranians quickly assimilated into and thrived in American culture. PAAIA provides some of this information on the Demographics & Statistics page of its website, http://paaia.org/iranianamericans/demographics-statistics. As PAAIA details online, Iranian Americans have educational attainments that greatly surpass the national average. According to Ronald H. Bayer's Multicultural America: An Encyclopedia of the Newest Americans, about 50 percent of all working Iranian Americans are in professional and managerial occupations, greater than any other group in the United States at the time the survey was conducted.
15. While assimilating into American society, Iranian Americans maintain close ties to their family in Iran. According to the 2017 Survey, 88% of respondents have family in Iran and more than half are in contact with their family or friends in Iran at least several times per month. About one quarter of 2017 respondents traveled to Iran once every two or three years, a lower level than in previous years.
16. Both as individuals and as a community Iranian Americans have actively participated in and enriched all levels of American culture and society, and have contributed to economic growth in America. Iranian Americans have made important contributions to the public sector, technology, business and the arts. PAAIA has profiled or made public information about many prominent Iranian Americans, including Cyrus Habib, Lieutenant Governor of Washington; Hadi Partovi, CEO of education non-profit Code.org; and Firouz Naderi, the former associate director of NASA's Jet Propulsion Laboratory. Iranian Americans have also founded some of the most innovative companies in the last twenty years and have been on the forefront of innovations in the technology sector. To provide just a few examples of prominent Iranian Americans who I am aware of, an Iranian American, Pierre Omidyar, founded eBay; an Iranian
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American, Omid Kordestani, serves as the Executive Chairman of Twitter; Farzad Nazem, was the chief technology officer at Yahoo; an Iranian American, Salar Kamangar, is a senior Executive at Google and the former CEO of Google's YouTube platform; Iranian American Omid Kordestani is Twitter's Executive Chairman.
17. Iranian Americans have also made significant contributions to the arts, such as Shoreh Aghdashloo, an Iranian American actress whose work has been recognized by the Emmys and the Oscars, and Nasser Ovissi, an internationally acclaimed artist.
18. I am also aware of Iranian Americans who have made important contributions in public service, serving in both national and state offices, such as Cyrus Amir-Mokri, who served as the Assistant Secretary for Financial Institutions at the United States Treasury; Faryar Shirzad, who served on the staff of the National Security Council; Goli Ameri, say Assistant Secretary of State of the Bureau of Educational and Cultural Affairs under the George W. Bush administration the current President and CEO of the Center for Global Engagement; and Azita Raji, who was nominated by President Obama to serve as United States Ambassador to the Sweden.
19. And, while the Iranian-American community has been smeared as terrorists by the policy we are challenging in this case, the initial first responder on the scene at the San Bernardino terrorist attack was an Iranian-American medic. One of the victims of that atrocious act was also an Iranian American.
IV. PAAIA's Interest in and Concern About Enforcement of the Presidential Proclamation of September 24 and the January 27 and March 6 Executive Order
20. PAAIA is vitally interested in and concerned about ongoing harm and impact resulting from a series of three linked Executive Actions restricting travel and immigration from Iran to the United States: (1) the original January 27, 2017, Executive Order, "Protecting the
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Nation from Foreign Terrorist Entry Into the United States" ("January 27 Executive Order") (2) the March 6, 2017, Executive Order of the same name ("March 6 Executive Order"); and (3) a proclamation issued on September 24, 2017, which partially went into effect on the same date, and is partially expected to go into effect as of October 18, 2017 ("September 24 Proclamation").
21. The Executive Actions have disrupted PAAIA's mission of encouraging constructive relations and enhancing mutual understanding between the peoples of the United States and Iran. We have received inquiries from our membership as to whether the enforcement of this exclusionary policy will also strain relations between the United States and Iran, thereby debilitating PAAIA's mission of promoting greater understanding between the Iranian and American people. Members are concerned that the Executive Actions create a negative stigma on Iranian Americans, directly conflicting with the missions and purposes of PAAIA, which stands for the positive impact of Iranian Americans.
22. PAAIA's members have been adversely affected by Executive Actions, and this latest decision to indefinitely ban travel and immigration has galvanized the community because of the effects on families. PAAIA members with family in Iran are concerned about the likelihood that their family will no longer be able to come to the United States, including IranianAmericans expecting new babies who need their parents to come and help, or those who have medical issues and need their family members here with them. Some of our members are very concerned as they have parents who are in the process of getting immigration visas and do not know what will happen to those applications now.
23. We have also received messages from an Iranian lecturer at the University of New Hampshire expressing concern over the travel ban on behalf of Iranian students and faculty. Many Iranian students are offered employment opportunities in the United States after they
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graduate This includes Iranian students in science and engineering fields who can perform technical skilled work and may no longer be available to help the economy due to the travel order.
24. With each new iteration of this discriminatory and illegal policy, a larger proportion of those impacted are Iranians. The Iranian-American community is by far the largest community harmed by the September 24 Proclamation of all the listed countries. It feels like it has become not just a Muslim ban, but even more explicitly an Iranian ban.
25. The impact on the community is severe because this is now an indefinite ban, not a temporary one. It makes any relaxation of the ban depend on cooperation from the Iranian government. Because the United States does not have any diplomatic relations with Iran, it would seem to be impossible for the ban to ever be lifted, based on the criteria in the Proclamation.
26. It is also concerning that the Proclamation contemplates having the American government share information with the Iranian government about their citizens who are seeking to come to the United States. This could be very harmful to these individuals. And Iranian nationals not living in Iran who want to travel to the United States may not want the Iranian government to know their status or location.
27. The way the Proclamation treats Iran compared with Venezuela is also very troubling. If the national security problem is with the Iranian government and not with the Iranian people, why penalize individuals seeking visas instead of penalizing government officials as the Proclamation does with Venezuela?
28. PAAIA continues to receive requests for assistance from individuals concerned about the Executive Actions and uncertain about their impact on their personal lives. Many
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individuals continue to express concern about ongoing effects of the two previous Executive Orders, despite the court rulings enjoining them. Because PAAIA does not provide legal services, I refer most of these individuals to Iranian-American organizations that provide legal assistance.
29. In our 2017 survey, 78 percent of respondents reported being concerned about "new policies that may deter travel between the U.S and Iran" with half being "very concerned." Fifty-six percent report personally experiencing discrimination, while 63% report that they know of other Iranian Americans who have personally experienced discrimination. This is up from 48% in 2016. Eighty-two percent reported they were concerned the rhetoric and policies of the current administration would increase the chances of discrimination against Iranian-Americans in the future 65% being "very concerned." And in our 2016 survey of Iranian Americans 68% reported concern that "rhetoric used by Presidential candidates" would lead to discrimination against Iranian-Americans, compared with 39% in 2015.
30. PAAIA has been in contact with members of the medical community regarding the consequences of the Executive Actions on new physician training through residency programs at U.S. hospitals. Every year, graduating medical students apply to the National Resident Matching Program (known as "the match"), where they can obtain essential required additional medical training as residents. Approximately 1/5 of match participants are non U.S. citizens, including graduates of foreign medical programs seeking to train in the United States. The match program assigns individuals to specific slots through a highly competitive interview and application process, taking into account both applicant and program preference.
31. The Executive Orders have disrupted this process by creating disincentives for U.S. medical programs to rank individuals from the affected countries highly. A residency
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program may not want to risk a slot on an individual who may not be able to obtain a visa to work in the United States. This means that U.S. hospitals may lose out on their top ranked choices or be forced to incorporate considerations other than merit in finding the best match. And any limitation on merit and quality in competing for positions in residency programs has even larger implications for U.S. medical care. Iranian doctors and medical students have spoken out forcefully about the problems the Executive Orders are creating in the match program this year and in other aspects of medical education and the profession.'
V. Harm to PAAIA and Its Mission 32. The Executive Actions have caused PAAIA to divert substantial resources to
combating their discriminatory effects. Since the January 27 Executive Order was signed, PAAIA has had to divert a substantial part of its resources to responding to media inquiries and requests about the impact of the policy on Iranian Americans and their families, providing guidance and educating the public on the impact of the series of Executive Actions and their status, and developing a strategy for how to respond in the face of significant uncertainty. PAAIA has seen a spike in inquiries and in the demand for its resources each time there is a new Executive Action, and this occurred again in the wake of the September 24 Proclamation.
33. PAAIA has held emergency phone calls on this subject, including an emergency telephone conference for concerned Iranian Americans with immigration and civil rights lawyers to provide its members and other Iranian Americans information about the policy and how it might impact their lives. PAAIA has also prepared press releases and informational memoranda
lAhmad Masri, M.D. and Mourad H. Senussi, M.D., Trump's Executive Order on Immigration: Detrimental Effects on
Medical Training and Healthcare, New England Journal of Medicine (Feb. 1, 2017), http://www.nejm.org/doi/pdf/10.1056/NEJMp1701251; Andrew Joseph and Eric Boodman, Trump's Immigration Order "Causing Havoc" for Medical Students Awaiting'Match Day, STAT (Feb. 2, 2017) https://www.statnews.com/2017/02/02/match-day-trump-medical-students/.
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for its members concerned about the Executive Actions. Actions. On January 29, 2017, I wrote an op-ed piece for the Huffington Post detailing how the Executive Order punished Iranian Americans who had proven every day that they were patriotic and fully supportive of national security concerns. As I explained in this article, the United States should not "turn a blind eye to the fact that the people of Iran have consistently demonstrated their affmity for the core values of our American democracy including liberty, freedom, and the rule of law. . . . [B]y using a broad brush to label all Muslims as enemies of America, the order ignores the fact that there has never been a single act of terror committed by anyone of Iranian descent in the United States." This article was published online at http://www.huffingtonpost.com/entry/punishing-the-innocent-inthe-name-of-national-security us 588d7674e4b017637794e356?u4ajuw4rcyvr96bt9.
34. The day to day activities of PAAIA have shifted away from its regular programs and activities towards combating the negative and wrongful effects of the Executive Actions on PAAIA's members and other Iranian Americans, and that impact has continued to this day. For example, PAAIA has been planning to launch a new fellowship program for Iranian American youth, and had to delay the launch for a number of months. Similarly, the Executive Actions forced PAAIA to postpone an event that was going to be hosted on behalf of an Iranian American running for local office. PAAIA has also been unable to devote adequate staff time to activities such as planning for the organization's upcoming annual event on Capitol Hill, fundraising for the organization, informational and networking events for members, and electioneering activities for the organization.
35. The cumulative impact of these Executive Actions and the shifting legal environment continues to frustrate the mission of PAAIA, requiring constant vigilance and adjustment. PAAIA has been forced to re-strategize its efforts for 2017 and 2018 to deal with the
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Travel Ban. PAAIA only has three full-time staff members serving PAAIA members and the Iranian-American community throughout the United States. All three of us have been devoting time and resources to activities and issues related to the Executive Actions.
36. Advocating on behalf of the Iranian-American community against the Executive Actions and coordinating advocacy efforts throughout the United States has taken a substantial amount of PAAIA's resources. Staff members from PAAIA are working with Congressional staff regarding a legislative response that is currently taking up a significant level of our resources. PAAIA is supporting legislation that would rescind the travel ban and is encouraging members of Congress to co-sponsor the legislation. PAAIA provides resources for how to contact senators and representatives and has been encouraging Iranian Americans to speak out against the Executive Actions. PAAIA has been preparing members for meetings with their members of Congress. On February 15th, PAAIA reported on an open letter to President Trump signed by 80 prominent industry professionals urging him to reconsider the January 26 Executive Order.
37. PAAIA also continues to devote resources to providing information about the Executive Actions to its members and the Iranian-American community. PAAIA, for example, has issued a series of alerts to community members to take action and information to educate them on the potential impact in response to the earlier Executive Orders, and again in response to the Proclamation. PAAIA has organized panel discussions and briefings in response as well.
38. As a result of the increasing climate of fear and animus stemming from the Executive Actions, PAAIA has become concerned about hate crime incidents in 2017 targeting Americans of Iranian descent, and organized the release of a statement. The statement condemns the rise of hate crimes directed at immigrants as a result of the rise of anti-immigrant rhetoric,
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including rhetoric leading up to the "Muslim Ban." http://paaia.org/CMS/iranian-american-orgsrise-hate-crimes-time-leaders-condemn-incidents.aspx.
39. PAAIA is devoting resources to addressing the negative portrayals of Iranian Americans engendered by the Executive Action, including expending funds and time in support of a digital campaign about the Iranian people that launched in August in response to the prior Executive Actions and in anticipation of a final determination about the policy. The goal of the campaign is to counter the stigma and "reintroduce" ourselves and our community to the American people and to educate policymakers and the public about who we are as a community and what we give back.
40. The September 24 Proclamation will continue to force PAAIA to divert time and resources. In addition to having to closely monitor the impact of shifting rules and procedures on its members and other Iranian Americans, including U.S. citizens and their family members, PAAIA will have to continuously research and analyze legal actions, monitor announcements and activity from the Department of Homeland Security, the State Department and other agencies, respond to and act upon concerns from Iranian Americans about the Executive Order, and rally the community to direct their concerns to their Congressional representatives. PAAIA is currently experiencing a significant impact from the current Proclamation.
41. When the September 24 Proclamation takes effect it will carry forward the ban on Iranian nationals and Iranian Americans of the earlier Executive Orders indefinitely. The discrimination and animus based on religion and national origin under this policy will continue to demean and stigmatize the Iranian-American community. This new Executive Action still fails to explain why people of Iranian descent pose a greater risk to Americans than individuals from
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 54 of 80 other nations not targeted by this ban. The continuation of this policy of exclusion will continue to adversely impact U.S. businesses and U.S. based families.
42. The discriminatory restrictions embedded within these Executive Actions are continuing and will continue to interfere with our mission to promote a positive image of Iranian Americans, support the interests of the Iranian-American community and to support the many important contributions of Iranian-Americans to American society.
43. At this time, we do not expect this pressure to lift and we do not know when we can return to the regular work of our association and our normal services we provide to our members, our community and the public.
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 55 of 80 I, Leila Golestaneh Austin, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 9th day of October, 2017, in Washington, DC.
ti:17L Leila GolestaneliAilitiii" Executive Director, Public Affairs Alliance of Iranian Americans
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 56 of 80 ATTACHMENT 1

Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 57 of 80
Iranian Americans
Immigration and Assimilation

• • •

PAAIA
Public Affairs Alliance of Iranian Americans

Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 58 of 80
c 2014 Public Affairs Alliance of Iranian Americans. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the Public Affairs Alliance of Iranian Americans, except in the case of quotations in news articles, critical articles, or reviews. Please direct all inquiries to: Public Affairs Alliance of Iranian Americans 1001 Connecticut Avenue, NW Suite 745 Washington, DC 20036 April 2014 This report was compiled with the assistance of Jessica Emami.
PRAIA
Public Affairs Alliance of Iranian Americans

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TABLE OF CONTENTS

INTRODUCTION

1

WAVES OF IMMIGRATION

2

The First Wave: 1950 - 1979

2

The Second Wave: 1979 - 2001

1

The Third Wave: 2001 - Present

3

ASSIMILATION: PATTERNS AND CHALLENGES

4

Self-Identification

5

Cultural Observances

7

Ethnic Diversity

9

Language Proficiency

10

Intermarriage

11

Spatial Concentration

11

Socio-Economic Status

12

WHAT DOES THE FUTURE HOLD?

13

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IRANIAN AMERICANS IMMIGRATION AND ASSIMILATION
INTRODUCTION
For nearly two centuries, since the first Iranian immigrated to the United States, the history of Iranian Americans has been evolving. It is a history of a people immigrating to a new country in search of opportunities for advancement and freedom. It is the story of individuals and families putting down roots in an unknown land and successfully melding their ancient heritage with the culture of their new home.
Though the Iranian American assimilation process has been similar to that of other immigrant communities in the United States, it has faced unique challenges, primarily, the result of ongoing tensions between the United States and Iran. As a matter of fact, the legacy of Iranian American immigration is intimately tied to the pre- and post-revolutionary political relationship between the governments of the two countries, with key events in Iranian history impacting both the numbers and profiles of Iranian immigrants admitted to the United States, as well as their ability to assimilate.
Yet, with perseverance and hard work, the Iranian American community has effectively addressed these issues and continues to prosper and grow.
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WAVES OF IMMIGRATION
The first known Iranian American is Mirza Mohammad Ali, better known as Hajj Sayyah, "The Traveler."1
Born around 1836 in Mahallat, a small town in Iran, Hajj Sayyah embarked, at the age of 23, on a journey around the world that lasted 18 years. Beginning in Central Asia and progressing through Europe, he arrived in New York around 1867. For the next ten years, he traveled throughout the United States, absorbing the country's culture and methods of governing. He met with President Ulysses S. Grant and, on May 26, 1875, became an American citizen, the first known Iranian in history to do so. After his return to Iran in 1877, he became one of the first Iranians to urge that democratic reforms be instituted by the Iranian government. For the remainder of his life, Hajj Sayyah actively participated in Iranian politics, campaigned passionately for improved living conditions in Iran, and went on to play a major role in the Iranian Constitutional Revolution of 1906. He died in 1925.
Since then and as noted in the table on the following page, hundreds of thousands of Iranians have followed in Hajj Sayyah's footsteps. Available data shows three major waves of Iranian immigration to the United States. The first occurred between 1950 and 1979, the second, from 1979 to 2001, and the last wave from 2001 until the present day. Figure 1 on the following page provides details on the number of Iranian Americans who were admitted each year between 1960 and 2012 and the total number of Iranian American immigrants in the US during that year.
THE FIRST WAVE: 1950 - 1979
From Hajj Sayyah's time through the mid-twentieth century, Iranian immigration to the United States remained a very small-scale phenomenon. Only 130 Iranians are known to have immigrated between 1842 and 1903.2 From 1904 to 1924, the number was insignificant, so much so that Iranians were not even recorded as a separate category of immigrants in United States immigration statistics.3 Within the next quarter century from 1925 — 1950, existing records show that nearly 2,000 Iranians were admitted to the United States as immigrants.4 However, it was not until 1950 that the first major wave of Iranian immigration to the United States began.
1Ali Ferdowsi, "Hajj Sayyah," Encyclopedia lranica, XI/5, pp. 556-60, and XI/6, pp.561; available online at http://www.iranicaonline.org/articles/hall-sayyah (accessed online at 26 June 2013). 2 Bozorgmehr, Mehdi and Douglas, Daniel (2011) 'Success(ion):Second Generation Iranian Americans', Iranian Studies, 44: 1, 3-24, p.10. 3 Handbook of Research on Ethnic Minority Entrepreneurship: A Co-evolutionary View on Resource Management, edited by Leo Paul Dana. Northampton, Edward Elgar Publishing, 2001, 246. 4 Bozorgmehr and Douglas, "Success(ion)," 10.
2
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Year
1960 1961
1962
1963 1964 1965 1966 1967 1968 1969 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986

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Iranian Immigrants admitted that year
429 471
601
705 754 804 1085 1414 1280 1352 1352 1825 2411 3059 2998 2608 2337 3731 4261 5861 8476 10410 11105 10314 11163 13807 16071 16505

Figure 1 —Iranian American Immigration (1960 2012)

Total Iranian Immigrants in U.S.

Year

Iranian Immigrants

Total Iranian Immigrants in U.S.

admitted that year

3459

1987

14426

152993

3630

1988

15246

168239

4231

1989

21243

189482

4936

1990

24977

214459

5690

1991

19659

234118

6494

1992

13233

247351

7579

1993

14841

262192

8993

1994

11422

273614

10273

1995

9201

282815

11625

1996

11084

293899

11625

1997

9642

303541

13450

1998

7883

311424

15861

1999

7203

318627

18920

2000

8519

327146

21918

2001

10497

337643

24526

2002

13029

350672

26863

2003

7,251

357923

30594

2003

7,251

357923

34855

2004

10,434

368357

40716

2005

13,887

382244

49192

2006

13,947

396191

59602

2007

10,460

406651

70707

2008

13,852

420503

81021

2009

18,553

439056

92184

2010

14,182

453238

105991

2011

14,822

468060

122062

2012

12,916

480976

138567

Source: U.S. Department of Homeland Security, Statistical Yearbook of the Immigration and Naturalization Service,

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Between 1954 and 1960, Iran, benefiting from increasing oil revenues and economic and military support from the United States, underwent a period of economic, social, administrative, and agricultural reforms that were aimed at modernizing the country. These revenues and the accompanying reforms and economic growth, however, resulted in inflation, a foreign trade deficit, and a decrease in the value of the rial (the Iranian currency). To combat these problems, the Iranian government launched massive industrialization campaigns that changed the role of the private sector in the country's ongoing economic development. Banks, both public and private, began providing reliable sources of credit, allowing for the establishment of large-scale private manufacturing enterprises. The government made significant investments in building and repairing roads, bridges, seaports, highways, and dams. New agricultural operations, particularly in the meat, fruit, and dairy sectors, were established. Between 1968 and 1978, the country attracted foreign investment and imports, resulting in an increase of nearly 500 percent in Iran's construction, gas, and oil industries.'
These increases in public spending, oil revenues, and domestic and foreign investments resulted in the rapid growth of the middle class in Tehran and other large cities throughout the country. Young people and those in the early stages of their careers began focusing on attaining higher levels of education and training to meet the demands brought on by the economic changes in the country. The inability of Iran's academic institutions to meet the unexpected demand for higher education and the lack of courses and training on the most advanced industrial methods and technologies prompted many young people to seek education outside of Iran.6 In the meantime, realizing that a small investment in education could easily translate to significant future economic value for the country, the Iranian government readily supported foreign education by providing financial support for many of these students- most of whom hailed from the growing middle class.
During this period, American universities offered some of the best programs in engineering and other technical fields and were anxious to attract students from foreign countries. Iranian students, most of whom had learned English as a second language in Iran, were highly desirable as new students in United States colleges and universities. By the mid-1970s, nearly half of all Iranian students who studied abroad did so in the United States. By 1975, the Institute of International Education's annual foreign student census figures listed Iranian students as the largest group of foreign students in the United States (9 percent).' During the next three years alone, the United States saw a near-doubling of the number of Iranian students, from 7.795 in 1975 and 13,928 in 1976, to 25,086 by 1977.
In the meantime, increased foreign investment and liberal foreign exchange rules enabled many Iranians, many of them friends and family members of Iranian students, to travel abroad freely. Consequently, the number of Iranian visitors to the United States also increased considerably, from 35,088 in 1975 to 98,018 in 1977. Altogether, between 1970 and 1977, a total of 316,665 non-immigrant visitors and 57,202 students from Iran entered the United States. By 1979, 51,310 Iranian students were studying in the United States.' These visitors and students unintentionally became the basis for the cultural, economic and social networks that would enable large-scale immigration in the years that followed.910 In relation, the number of Iranians entering the United States as immigrants increased moderately during the same time period totaling 25,960 immigrants, of whom 6,040 were naturalized."
It should be noted that most of the non-immigrant visitors and students who were in the United States fully intended to return to Iran once their education or visit had been completed. However, the
Ibid, p. 147. 6 Hakimzadeh, Shirin (2006). "Iran: A Vast Diaspora Abroad and Millions of Refugees at Home." Migration Policy Institute; available online at http://www.migrationinformation.org/feature/display.cfm?ID=424
Bozorgmehr and Sabagh, 10. 8 Ibid., p. 8 9 Ali Modarres, "Settlement Patterns of Iranians in the United States," Iranian Studies 31, no. 1 (January 1, 1998): 48, doi:10.2307/4311117. '° Bozorgmehr, Mehdi, "Diaspora," Encyclopxdia Iranica, Vol. VII, Fasc. 4, pp. 370-387; available online at http://www.iranicaonline.org/articles/diaspora. "Analysis of Bozorgmehr and Sabagh, 8
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Iranian Revolution of 1979 and the events that followed effectively curtailed their ability to do so. Their continued stay and the second wave of immigration that occurred following 1979 is now considered the first "brain drain" from Iran.12
THE SECOND WAVE: 1979 - 2001
The second wave of Iranian immigration to the United States began shortly before the Iranian Revolution of 1979 and remained relatively unchanged until 2001.13
During the 1970s, due to the increasing restrictions on citizens' political participation, many Iranians had become disillusioned with the rule of Shah Mohammad Reza Pahlavi. Starting in late 1978, street protests led to increasing demands for a change of government, culminating in the 1979 revolution and establishment of the Islamic Republic of Iran by Ayatollah Ruhollah Khomeini. The revolution and the events that followed, including the establishment of an Islamic government following Sharia law and the eight year war between Iran and Iraq, served as catalysts for a mass exodus of much of Iran's established middle class.14 By 1988, the World Refugee Survey reported Iran to be tenth among countries with the highest source of refugees.15
Iranians who immigrated to the United States after the revolution were different from those who had done so in the preceding 25 years. The new immigrants were no longer principally individual students and professionals, but middle and upper class families, most of whom were political refugees and exiles.16 They were diverse in their religious, political, and ethnic background and their reasons for leaving Iran varied. They included families associated with the previous regime as members of the government, military, and owners of large businesses!' This second wave also included a disproportionately high number of ethnic and religious minorities such as Sunni Muslims, Christians, Jews, Baha'is, and Zoroastrians, all of whom left in fear of religious persecution. The new immigrants also included political dissidents, as well as displaced cultural workers such as writers, journalists, artists, and musicians. During this revolutionary period, about 57 percent of the immigrants to the U.S. from Iran were men.18
The new Iranian immigrants were also more economically diverse than their professional and university student predecessors. Although Bozorgmehr and Sabagh (1998) found that some of these new arrivals came from lower educational and occupational backgrounds, when compared to other refugee groups in the United States (except for Cuban and Vietnamese immigrants), the overall socioeconomic background of these immigrants was quite high.
Most of those who travelled to the United States immediately following the Iranian revolution sought ways to become peimanent residents. These included Iranians who had saved foreign funds in anticipation of an emergency as well as those who had made a hasty exit with nothing more than a suitcase. Almost all came to the United States with the hope of rebuilding their lives. Those who were political refugees (i.e. held high positions under the Shah) initially expected no more than a sojourn in the United States, believing that political conditions in Iran would soon change and they would be able to return home. Eventually, they realized that the situation in Iran would not revert to its previous state, and they gradually began to live as permanent immigrants in the United States.
A methodical survey of Iranians in Los Angeles by Bozorgmehr revealed that Iranians who arrived prior to the Iranian revolution of 1979 (57 percent) classified themselves as immigrants, while
lz Ansari, "Iranian Immigrants," 1076. 13 Analysis of Bozorgmehr and Bakaliah, "Backlash 9/11". 14 Hakimzadeh, "Iran: A Vast Diaspora" is Bozorgmehr, Mehdi, "Diaspora," Encyclopmdia lranica, Vol. VII, Fasc. 4, pp. 370-387; available online at http://www.iranicaonline.org/articles/diaspora. is Bozorgmehr, 1998, 5. 17 Hakimzadeh, "Iran: A Vast Diaspora" la Mobasher, "Iranians and Iranian Americans, 1940—Present," in Immigrants in American History: Arrival, Adaptation, and Integration., 2013, 1000,
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those who arrived after the revolution classified themselves as exiles or political refugees (43 percent). Due to the considerable number of Iranians present in the United States prior to the Iranian revolution, Iranian Americans today as a whole should not be considered primarily as refugees or exiles. There were, however, differences between the settlement patterns and characteristics of Iranians who settled in the United States before and after the revolution. Numerically, the largest influx of Iranians who came to the United States took place just after the revolutionary period, 1979-1982. The post-revolutionary immigrants included a higher proportion of religion minorities and were much more evenly distributed in terms of age and gender distribution than the Iranians that immigrated to the United States prior to 1979. In addition, post-revolutionary immigrants, of who most were exiles, had somewhat lower socioeconomic occupational status than their pre-revolutionary cohorts. This may have been not only due to their origins, but also due to their forced downward mobility after leaving Iran as exiles or refugees.'9
The immigration and naturalization trend for Iranians, however, was significantly impacted by the hostage crisis in 1980 and the resulting extreme political tension between the governments of Iran and the United States. In response to the hostage crisis, the United States government revoked the visas of all Iranian non-immigrant visitors and suspended all new visas to Iranian citizens. A number of Iranians were deported from the United States and those who were immigrants were required to report to their local Immigration and Naturalization Services (INS) office for extensive interviews.20 During this period, 56,700 Iranian students reported to the INS and almost 7,000 were found to be in violation of their visas, of whom a number were deported, while most applied for political asylum, fearing that return to Iran would result in their persecution.21 The discrimination and difficulties that Iranians experienced throughout this time increased their motivation to blend into and comport themselves as productive members of United States.
Following the outbreak of the Iran-Iraq war in September 1980, an exodus of young men eligible for military service and middle class professionals ensued in Iran, and is reflected in the INS records depicting the relatively high number of men entering the United States.22 Between 1981 and 1990, 116,172 Iranians immigrated to the United States.23 Young men who were at risk of being drafted to fight in the Iran-Iraq War (1980 - 1988) became the beneficiaries of United States political asylum laws.24 Between October 1981 and February 1985, more Iranians were granted asylum — 11,055 in total — than any other nationality. Thousands of other Iranians, however, remained in the United States illegally, working odd jobs, living with relatives and family, and making every effort to pass detection by INS agents and deportation back to Iran.
The Immigration Reform and Control Act (IRCA), passed in 1986, allowed thousands of Iranians who had been living illegally in the country to become legal permanent residents. This act not only increased the number of Iranians with permanent residency status, but the Act's family-sponsored preference category resulted in a surge in immigration by relatives of Iranians already in the United States.
The adjustment of status for Iranians under IRCA precipitated naturalization to U.S. citizenship of a large number of Iranians who were then able to sponsor their families. The predominantly male Iranian immigrant population was joined by their wives and children. Consequently, in 1992, for the first time in the history of Iranian immigration to the U.S., the number of Iranian women admitted as
19 Georges Sabagh and Mehdi Bozorgmehr, "Are the Characterisitcs of Exiles Different from Immigrants? The Case of Iranians in Los Angeles," Institute far Social Science Research, May 1, 1986, 20 Sabagh and Bozorgmehr, "Survey Research among Middle Eastern Immigrants in the United States: Iranians in Los Angeles," Middle East Studies Association Bulletin 23 (1987): 77-84. 21 Mobasher, "Iranians and Iranian Americans, 1940—Present," 1002.
22 I bid., 1000. 23 U.S. Department of Homeland Security, Fiscal Year 2001 Statistical Yearbook, Immigration by Region and Selected Country of Last Residence Table, pages 6 • 8. 24 Ansari, "Iranian Immigrants," 1077.
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immigrants to the U.S. surpassed the number of men.25 From 1985 to 1989 46,418 Iranian men and 37,071 women were admitted to the United States, compared to 41,977 men and 42,041 women who were admitted from 1990-1994.26 The number of older Iranian immigrants also greatly increased during this time. 27
THE THIRD WAVE: 2001 - PRESENT
The catastrophic terrorist attacks of September 11, 2001 significantly impacted Iranian immigration to the United States.
Even though Iranians did not have a part in the terrorist attacks on the United States, in his State of the Union address in January 2002, President George Bush labeled Iran, Iraq, and Korea as part of the "axis of evil" countries that were sponsoring terrorism and seeking weapons of mass destruction. Soon thereafter, the Enhanced Border Security and Visa Reform Act of 2002 was created and signed into law by President Bush in 2002.28 Section 306 of the law forbade the issuance of nonimmigrant visas to any alien who was from a country considered a "state sponsor of terrorism" by the U.S. Department of State, unless the Secretary of State decided that the alien in question posed no danger to U.S. national security.29
In September 2002, the U.S. Department of Justice (DOJ) instituted a policy known as the Domestic Call in Registration Program, also known as NSEERS. Under this program, non-immigrant male nationals from twenty-five countries, including Iran, were required to report to their local INS office and be fingerprinted, questioned, and photographed." The events which followed the December 16th registration program were particularly disturbing to Iranian Americans. Due to procedural infractions, hundreds of male Iranians, including those who were waiting for the adjudication of their legal claims to become permanent residents, were arrested, detained, and harshly treated. Over 1,000 Iranians were arrested and detained by INS and many others were deported because of visa infractions. In response to the detention of Iranians, large protests took place in Los Angeles.31
The number of immigrant and refugee visas that were issued to Iranians during this time decreased significantly, from 13,887 Iranian immigrants and 2,971 refugees admitted to the United States in 2002 to 7,251 immigrants and 1,878 refugees in 2003. As noted in the figure on the following page, it would take a couple of years before the numbers rebounded again.
The Enhanced Border Security and Visa Reform Act, NSEERS, and the backlash that occurred against Iranians as a result prompted the community to re-evaluate its standing in the United States and what it needed to do to protect its individual and communal rights. Numerous Iranian American organizations were formed in the aftermath of 9/11 focused primarily on addressing the domestic interests of and protecting the rights of Iranian Americans. Communities gathered to protest against acts of discrimination as well as the negative image that the media had built of the community. There was a marked interest and active participation in civic activities, including identifying and electing Iranian Americans or those who were supportive of the community to elected office. The Iranian American

25 Mohsen M. Mobasher, Iranians in Texas: Migration, Politics, and Ethnic Identity (University of Texas Press, 2012), 43.
26 Ibid, 1001 27 Mobasher, Iranians in Texas, University of Texas Press (2012), 2.
28 F. Sensenbrenner, "H.R.3525 - 107th Congress (2001-2002): Enhanced Border Security and Visa Entry Reform Act of 2002," legislation, May 14, 2002, http://beta.congress.gov/bill/107th-congress/house-bill/3525.
29 H.R.3525 Enhanced Border Security and Visa Entry Reform Act of 2002, n.d., 30 IAPAC. "INS Special Registration Program Shifts Gears — IAPAC Brief." July 2, 2003. Accessed November 6, 2013.
31 Anny P. Bakalian and Mehdi Bozorgmehr, Backlash 9/11: Middle Eastern and Muslim Americans Respond (University of California Press, 2009), 293.

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Political Action Committee (IAPAC) was established in 2003 to promote the election of candidates that support the advancement of Iranian American issues.32
Iranian Americans also began to take a more active role in the politics of Iran. The alleged irregularities of the 2009 presidential election in Iran, in which Iranian President Mahmoud Ahmadinejad was reelected to a second term, triggered massive protests both in Iran and throughout the world. These protests, widely known as the "Green Movement," were brutally suppressed by the Iranian police and military. The election results and the treatment of their fellow countrymen were a catalyst for increased political action among the community. As noted in Figure 2, there was a 25 percent decrease in the number of immigrant visas issued in 2010 (from 18,552 in 2009 to 14,182 in 2010) and 30 percent drop in the number of Iranian refugees admitted to the United States (from 5,381 in 2009 to 3,543 in 2010). The reason for this change is unclear, though most researchers contribute it to challenges that Iranians faced in traveling abroad for visas following the events in Iran.33
Figure 2 — Iranian American Immigrant and Refugee Admission (2001 — 2010)
20000 •
18000
16000
14000
12000
10000
8000
6000
4000
2000
0 2001 2002 2003 2204 2005 2006 2007 2008 2009 2010

Iranian Immigrants

Iranian Refugees

Source: U.S. Department of Homeland Security, Statistical Yearbook of the Immigration and Naturalization Service, 1986-2005 - U.S. Immigration and Naturalization Service, Annual Reports, 1960 -1977 and Statistical Yearbook, 1978 - 1986

ASSIMILATION: PATTERNS AND CHALLENGES
When discussing immigrant groups, the term "first generation" can refer to both those who have emigrated from another country and to their children who arrived before age thirteen. Within the context of this report, however, first-generation Iranian Americans refers to those individuals who immigrated to the United States from Iran. Their children are referred to as second-generation Iranian Americans.

Mehdi Bozorgmehr, "Iran," in The New Americans: A Guide to Immigration Since 1965, First (Cambridge, MA.: Harvard University Press, 2007), 469-78. 33 U.S. Department of Homeland Security, Statistical Yearbook of the Immigration and Naturalization Service, 1986-2005 — U.S. Immigration and Naturalization Service, Annual Reports, 1960 -1977 and Statistical Yearbook, 1978 - 1986
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Richard Alba and Victor Nee define assimilation as "the decline, and at its endpoint, the disappearance of an ethnic/racial distinction and the cultural and social differences that express it."34 Within this defmition, assimilation is not simply the substitution of one cultural expression for another, but the ability of minority ethnic cultures to absorb or incorporate elements of the dominant culture to create a hybrid cultural mix. This definition avoids assimilation's past normative or ideological applications and incorporates the belief that the host country's culture also assimilates and changes as the result of the immigrant experience.
Assimilation is a process that occurs gradually, beginning from the moment an immigrant sets foot into the country. The process of assimilatic 8 impacted by daily interactions and experiences. Though individuals assimilate into a new culture, society, and economy at different paces, the assimilation process of an entire group into a new country occurs over decades and generations. The Iranian American assimilation process is no different in this regard.
Thirty-five years after the largest wave of Iranian immigration to the United States, there continues to be significant diversity among individual Iranian Americans and their assimilation into the overall population of the United States. There are many who have fully absorbed American culture — assuming westernized names, speaking only English, and embracing American ways in every aspect of their lives. At the other extreme are those who have steadfastly maintained their Iranian heritage and emphatically refuse to accept any part of the new culture in which they live. The majority of Iranian Americans, however, fall somewhere between these two extremes, combining the Iranian and American cultures and attempting to live a life that honors both cultures, if not equally, at least effectively.
A systematic measurement of the Iranian American assimilation process is difficult. There is limited data available about most recently established national ethnic groups. Though there have been few surveys that have collected accurate and up-to-date information about the Iranian American community, most of the information continues to be gleaned from a scientific poll conducted in 20052006 in California, from the Census Bureau's every-decade survey of the population and more recent American Community Surveys, as well as the national surveys of Iranian Americans commissioned by the Public Affairs Alliance of Iranian Americans (PAAIA). The latter, begun in 2008, have been conducted annually with the exception of 2010. As a result, much of the information available on the Iranian American community is based on approximations and conclusions drawn from these sources.
SELF-IDENTIFICATION
There are a number of factors that have influenced Iranian Americans' sense of identity and their overall assimilation into the culture of the United States. The relationship between the United States and Iran and the effects of this relationship on how Iranian Americans are perceived has been one of the main challenges faced by the Iranian American community. International events unrelated to United States— Iran relations have also impacted perceptions of the community 35
As PAAIA's 2008 National Public Opinion Survey of American Perception of Iranian Americans revealed, "American perceptions of Iran, Iranians and Iranian Americans are mostly formed by media reports on Iran that are for the most part focused on the political situation there and the state of relations between the two countries." However, most Americans surveyed stated that they believed Iranian Americans generally share the same values as Americans as a whole, while a near-equal number also believed that the current government of Iran does not represent the values and views of a majority of
34 Alba, Richard and Nee, Victor. "Rethinking Assimilation For a New Era of Immigration." International Migration Review 31 (4): 863. 35 Mobasher, Iranians in Texas.
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Iranian Americans.36 Thus, while United States—Iran relations impact the perceptions that Americans as a whole have of this community, they do not completely define American perceptions.
There is no question, however, that escalating hostilities between the United States and Iran have adversely affected both first- and second-generation Iranian Americans. For the former, the deterioration of relations between the two governments has been a significant factor in their assimilation process. The initial backlash against Iranian Americans began following the Iranian Revolution of 1979. Until then, the United States and Iran had enjoyed strong and collaborative relations. The revolution, however, began a period of accelerated decline in United States-Iran relations. With the 1979 hostage crisis, in which 52 Americans were seized and held for 444 days, the United States and Iranian governments changed from being allies to becoming de facto adversaries. Students and families who had studied, worked, and lived freely and comfortably in the United States were suddenly faced with acts of discrimination and overzealous investigation by the United States go 9 nent. Students were required to register with the INS, have a valid visa, and provide proof of being enrolled in school full-time. Those who did not have legal status were scheduled for deportation.37 Though a number of Iranian students sued the United States government to have the decree revoked, claiming they were being unfairly targeted, 20 students were deported and 823 voluntarily agreed to leave the United States during that time.38This change in the treatment of Iranian Americans was one of the first significant challenges that the community encountered, effectively interrupting an otherwise steady and seamless path to assimilation.
During this period, Iranian Americans were also the recipients of a backlash of prejudice, discrimination, and sometimes violence from individuals displacing their anger at the actions of the Iranian government. Verbal and physical attacks on Iranian American students on college campuses, boycotts of Iranian businesses, and even incidents of arson occurred.39 A number of colleges and universities, particularly in the South, instituted discriminatory policies against Iranian students.4° For example, the Mississippi legislature passed a bill which doubled the tuition rate of all Iranians attending public universities in the state.41 Iranians were also often portrayed negatively in the media. As a result, according to former Iranian Prime Minister Shahpour Bakhtiar, "the process of assimilation was increasingly more difficult during those times. Iranians were often lumped together by the press and public."42 These experiences prompted many Iranian Americans to distance themselves from their heritage. Many began referring to their origin as "Persian" rather than "Iranian." Others changed their last names, Americanizing them to conceal their heritage. Many banded together in mutual support and began avoiding the general American public to decrease possible incidents of abuse and discrimination. According to Bakhtiar, "many Iranians shopped at night and otherwise avoided people to reduce the threat of physical attack."
United States-Iran relations, as well as reports of Iranian involvement in various international incidents, also influenced the identity of second-generation Iranian Americans. In 2009, Golnaz Komaie published a doctoral dissertation, entitled "The Persian Veil," in which she conducted 51 interviews of generation 1.5 (those who came to the United States under the age of 13) and the second generation (those born in the United States to at least one immigrant parent) of Iranian Americans in southern California. She found a correlation between the troubled relations of the two nations and self-identification by Iranian
36 "Public Opinion Survey of American Perception of Iranian Americans." Commissioned by the Public Affairs Alliance of Iranian Americans (PAAIA) and conducted by Zogby International. December 2008. Available online at http://www.paaia.org/CMS/Data/Sites/1/PDFs/finalreportsurveyofamericanperceptions.pdf. Citation on page 2.
Bozorgmehr, "Iran," 475. 38 McCann, Joseph T. Terrorism on American Soil: A Concise History of Plots and Perpetrators from the Famous to the Forgotten. Boulder, Sentient Publications, 2006, 141. 39 Mills, Gregory J., "Beyond the Backlash: Muslim and Middle Eastern Immigrants' Experiences in America, Ten Years Post-9/11" (2012). Graduate School Theses and Dissertations. 48 "The Hostage Crisis and Integration of Iranians in the United States." Immigrants in American History: Arrival, Adaptation, and Integration. Ed. Elliott Robert Barkan. Vol. 3. Santa Barbara, CA: ABC-CLIO, 2013. 1002. Gale Virtual Reference Library. Web. 18 May 2013. 41 E.R. Barkan, Immigrants in American History: Arrival, Adaptation, and Integration (ABC-CLIO, 2012), 1002, 42 Bozorgmehr and Douglas, 'Success(ion)', 7-8.
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Americans. Her findings indicated that the second generation was more likely to self-identify as "Persian" and to downplay their ties to Iran after the September 11, 2001 terrorist attacks in New York City, even though none of the perpetrators of the attacks were of Iranian origin.
There has, however, been a definite change in how Iranian Americans have self-identified over the past decade. During this time, the percentage of Iranian Americans born in the United States has increased steadily. In 1990, only 20 percent of Iranian Americans were native born; by 2000, however, the percentage had increased to 32 percent, and 35 percent by 2010. In a survey conducted nationally, approximately half of the 1.5 and second generations identified themselves as Iranian American, one-third as Iranian, and 10 percent as American. As expected, in areas where there was a higher concentration of Iranian Americans, such as California, the proportion of those identifying themselves as Iranian was higher.
In another survey, conducted in New Jersey in 2005, Iranian Americans were asked: "How do you think of yourself?" A large majority (70 percent) said that they were Iranian American, while 10 percent and 20 percent, respectively, said they considered themselves American and either Iranian or Persian.43 This was a significant change from a similar survey conducted in 1988, when only 30 percent of those surveyed identified themselves as Iranian American. In the 2005 survey, most respondents said that their attitudes toward their Iranian ancestry bi 10 D change around the age of 13, primarily because of their association with other Iranian children as mends or going to Persian classes. Studies have suggested that college has also been an important time for many Iranian Americans as they rediscover their heritage.
Generally speaking, Iranian Americans' self-identity is symbolic in nature and related to cultural observances, customs, and recreational activities. The first generation is more reluctant to assimilate completely because of their deep attachments to, and preoccupation with, events in the homeland. The second generation sees themselves more American, and lack the attachment to the Iranian homeland that their parents hold. They are more likely to be politically and socially engaged with their American side,44 and although they are interested in visiting Iran, they would not consider living there.45 Iranians are now at a point in their immigrant journey where they selectively choose elements of their Iranian and American identities, developing a unique "diasporic" identity that is quite different from native Iranians.46 Moreover, Iranians stay connected to one another despite their differences through strong memories and attachments to their homeland47.
Iranians pick and choose elements of their home culture to forge a chosen identity abroad that is not necessarily directly related to their homeland as constituted today. This diasporic identity arose as a result of the large, heterogeneous group of Iranians who forcibly left Iran en masse after the Iranian Revolution of 1979. The Iranian diasporic community may view its national, American identity as being related to political and civic, and national responsibilities, while at the same time incorporating elements of Iranian cultural and ethnic practices, and a strong sense of family ties, especially within the private domain 48
CULTURAL OBSERVANCES
Related to self-identification, and arguably an important component of it, are cultural observances. Iranian Americans have retained a wide variety of traditional Iranian celebrations and customs as part of their "Iranianness." In a survey published in the article "Iranian American Identity"
43 Ansari, "Iranian Immigrants," 1093 " Bozorgmehr, "Iran," 477. 45 Nilou Mostofi, "Who We Are: The Perplexity of Iranian-American Identity," The Sociological Quarterly 44, no. 4 (October 1, 2003): 686, doi:10.2307/4120728. 46 Ibid., 682. 47 Ibid., 687. 48 Ibid., 682.
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(Iran Times), Iranian Americans were asked: "What qualities are important in the Iranian part of your identity?" Most cited their family, language, Nowruz (Persian New Year), Persian food, hospitality, politeness, courtesy, and respect for elders. The latter four are staples of Iranian values.
Prior to the large-scale immigration triggered by the Iranian Revolution of 1979, Iranian Americans had few cultural institutions. However, over the past thirty years, this has changed dramatically. Today, there are over a hundred Iranian American cultural, regional, religious, and professional organizations and foundations throughout the United States.49 These include cultural centers for art and performance, Persian schools, chapters of national organizations, and organizations dedicated to academic and other pursuits. These organizations offer a wide variety of activities and programs, ranging from traditional festivals, Iranian musical performances, and Persian language lessons, to making and promoting traditional Iranian food.
Cultural centers were the earliest community-based organizations for Iranian Americans. It would not be an exaggeration to assume that there is at least one, if not more than one, Iranian American cultural organization in every state in the United States — including those with smaller concentrations of Iranian Americans. They exist in almost every maj 11 Lerican city and include both local organizations and chapters of national organizations. The primary aim of these groups is to perform and promote activities through which Iranian Americans can remain connected to their heritage but also educate those not of Iranian descent about Iranian culture.
Since ancient times, Iranians have celebrated three national festivals: Nowruz, Mehregan, and Sadeh. The largest, and perhaps most important, is Nowruz, the Persian New Year. Nowruz, which is more than 2,000 years old and is celebrated by more than 300 million people around the world falls on the first day of the spring equinox (usually March 21s1), and the celebration traditionally lasts more than 13 days. The celebration includes the arrangement of the sofreh haftsin, a table decorated with flowers and seven items that begin with the letter "s" in Persian, symbolizing different wishes for the New Year, such as health and patience. Nowruz is accompanied by the holiday Charshanbeh Souri, celebrated before the New Year, during which individuals jump over a bonfire to rid themselves of the past year's sickness and problems. Sizdahbedar is celebrated 13 days after the New Year by spending the day at a picnic outdoors with one's family. It is considered good luck and a blessing to leave the house with one's family on that day.
Beginning in the 1980s, Nowruz has been increasingly celebrated in public settings such as museums and city halls with many non-Iranians, including prominent public figures, in attendance. In recent years, Nowruz celebrations have been held, among other places, at the Smithsonian Institution, the residence of New York City Mayor Michael Bloomberg, on Capitol Hill, and at the White House. In 2009, President Obama released a message to the people of Iran, declaring Iranians a "great civilization" and stating: "Here in the United States, our own communities have been enhanced by the contributions of Iranian Americans." In 2010, both chambers of the United States Congress passed resolutions which recognized the cultural and historical significance of Nowruz, expressed appreciation to Iranian Americans for their contributions to society and wished Iranian Americans and the people of Iran a prosperous new year. The Nowruz resolutions was part of PAAIA's broader efforts to foster greater understanding of Iranian culture and heritage as well as to project an accurate and positive image of the Iranian American community on Capitol Hill.
Like other ethnic groups, Iranian Americans are enthusiastic and willing to celebrate their culture with non-Iranians. Since 2004, for example, an annual Persian parade has been held in New York City, along fifteen blocks of Madison Avenue. Iranian Americans of all backgrounds participate, walking or riding on floats and wearing costumes from their ancestral home. This parade is currently one of the
49 Ansari, "Iranian Immigrants," 1093.
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largest publicly visible Iranian American ceremonies and plays an important role in bolstering a sense of cultural pride, particularly among members of the second generation.5°
Another important way Iranian Americans express their cultural heritage is through the use of mass media. In Los Angeles, over the last thirty-five years, a veritable Iranian cultural industry has developed and matured as the professional artists, singers, musicians, filmmakers, and poets who left Iran due to restrictions on their artistic products made a new home for themselves in the U.S. Currently, there are five radio and thirty television stations which broadcast in Persian by satellite to all parts of the world, including Iran. This cultural programming helps Iranian Americans remain in contact with their culture and also provides additional cultural programming for many Iranians inside Iran. In areas where they are present in large numbers, Iranian Americans also publish numerous local and national publications that contain commercial, cultural, and occasionally, political information,
Iranian music is rich and diverse. In the aft(, —1.2.1 of the Iranian Revolution of 1979, however, the Iranian government banned music for a period of time, considering it reflective of Western moral decay. To this day, only certain forms of music are permitted in Iran. As a result, many Iranian singers, musicians, and performers were forced to leave the country and settle in the United States, where they have contributed to a rich cultural industry in Iranian music and drama. Over the past few years, with the increasing use of the internet, a number of Internet-based Iranian radio stations have been launched that have become a popular venue for listening to both old and recent musical performances. These stations target both the younger generation of Iranian Americans (e.g., Radio Javan) and the more traditional, first-generation Iranians (e.g., Radio Darvish). Traditional Persian music has always played an important role in fostering a sense of ethnic identity among Iranian Americans. Today, there are several centers in the United States dedicated to its performance.
Hand in hand with music, poetry has also long occupied a very important position in Iranian culture. In the United States, it has been an important means by which Iranian Americans remain connected to their heritage. One of the most popular activities at cultural centers through the country is the Shab-I-Shehr (poetry reading night), where interested individuals gather to read and discuss the poetry of Iranian poetic masters. Interestingly enough, the works of Iranian poets, such as Hafez and Rumi, known for the depth of their poetic message, have become well-known to the general United States population, adding to the pride that the Iranian American community feels towards it ancient heritage.
Finally, food is another important means of cultural preservation in the Iranian American community Dishes like chelo kabab, fesenjan, and khoresht ghormeh sabzi, remain staples for many, particularly for the first generation. Iranian food has also become popular among non-Iranian Americans, an indicator of ethnic influence on mainstream American culture. Iranian grocery stores have proliferated, particularly in Los Angeles, and the number of Iranian restaurants and fast-food vendors in the United States has doubled over the past ten years.
ETHNIC DIVERSITY
Iranian American immigrants are, in large part, a reflection of the ethnic diversity that exits in Iran. The people of Iran have many religious and ethnic minorities. Because members of some of these groups fled Iran after the Iranian Revolution of 1979, there is a disproportionately high number of Iranian ethnic minorities in the United States.51 These include Armenians, who are Orthodox Christians, Assyrians, who are also Christian, Kurds, who are Sunni, and Turkish-speaking Iranians of Azeri origin.
5° "Welcome to the Annual Persian Parade," New York Persian Parade, n.d. si Sabagh and Bozorgmehr, "Are the Characterisitcs of Exiles Different from Immigrants?".
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Many of these sub-ethnic groups identify as Iranians but also strongly identify with their sub-ethnicity, and assimilate more slowly than their Iranian majority counterparts.52
BENCHMARKS OF ASSIMILATION
The second generation of Iranian American has retained a sense of being Iranian in part by speaking Farsi, in addition to celebrating traditions and customs and passing these to their children. They have also picked up American customs and values and incorporated them into their day-to-day lives. Many second generation Iranian Americans are active "soccer moms and dads" during the weekends, celebrate Thanksgiving and Christmas, and ensure that their children are fully involved in school events and activities. In the meantime, many insist on serving Persian food at home, celebrating Persian holidays, and enrolling their children in Persian language classes on the weekends. Their Iranian and American identities are integrated, and both are cor----lponents of who they are.
13
Iranian American members of the 1.5 generation, those who were adolescents when they immigrated, were both too young to have lived independently in Iran and, upon arriving in the United States, too old to feel completely American. Like members of other immigrant groups, they have often experienced a feeling of "dual marginality," of not completely belonging to either their country of origin or their adopted land. For many of these people, there has been a continued struggle as they attempt to define their identity within the confines of both cultures. Ultimately, however, the fact that many Iranians have U.S.-born children who feel culturally more Americans, or intermarry, causes most Iranians to choose to accept a hyphenated (Iranian-American) identity.
Four benchmarks are generally used traditionally to measure assimilation: language proficiency, intermarriage, spatial concentration, and socio-economic status. Using these criteria, one can determine with a significant degree of confidence that the Iranian American community has made significant strides in successfully assimilating to a new culture and way of living.
LANGUAGE PROFICIENCY
As the assimilation process has taken place over the generations, there has been a noticeable change in what, to many Iranian Americans, constitutes being "Iranian." To the first generation, the use of the Persian language was and continues to be central to their identity.53 Generally, knowledge of the mother tongue rapidly declines with each generation among United States immigrant groups: the first generation principally speaks their native language, the second generation is fluent in both their parents' native language and English, and the third generation typically speaks only English, while maintaining knowledge of some isolated words and phrases from their ancestral tongue. Iranian Americans have followed this pattern. One respondent from the 2005 New Jersey study previously cited said: "For us, the Persian language, while very important, does not occupy the same place as it does for our parents."54
Although first-generation Iranian Americans speak mostly Persian at home, due to their high levels of education prior to immigration, they have also been far more proficient in English than firstgeneration immigrants from many other groups. Whereas it is typical for most members of the initial generation to have limited English proficiency, in the American Community Survey 2009 - 2011, taken from the United States Census Bureau, 57 percent of foreign-born Iranians in the United States stated they
52 Mehdi Bozorgmehr, "Internal Ethnicity: Iranians in Los Angeles," Sociological Perspectives 40, no. 3 (January 1, 1997): 387-408, doi:10.2307/1389449. sa Ansari, "Iranian Immigrants," 1087. 54 Ansari, "Iranian Immigrants," 1087.
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spoke English "very well."55 For being a relatively new group of immigrants from a non-Englishspeaking country, this is a remarkably high figure. As noted by Mehdi Bozorgmehr, this unusually high level of English proficiency is partly due to the fact that many were educated in the United States. According to the same survey, the naturalization rate of first-generation Iranian Americans was an exceptional 71 percent, significantly higher than the figure for foreign-born Americans as a whole.
INTERMARRIAGE
An additional measure of how well an immigrant group assimilates into the host society is the extent to which its members intermarry with and have friends and acquaintances among the general population. In these respects, Iranian Americans appear to have integrated quite well. According to a survey commissioned by PAAIA in 2008, only 21 percent of Iranian Americans surveyed reported interacting mostly with other Iranian Americans outside of their workplace, demonstrating that most have successfully integrated into United States society.56
Intermarriage rate is very high among Iranian Americans. It has been estimated that nearly 50 percent of Iranian Americans who married between 1995 and 2007 married non-Iranian Americans.57 Research has indicated that Iranian Americans w1" — Muslim are more open to intermarry than those who are members of religious or ethnic minorities, 14 as Jews and Armenians.58 Additionally, women are less likely to intermarry than men, likely because as a group, they are more likely to adhere to traditional Iranian values, including marriages that are approved by their families and within Iranian cultural norms. Some studies have revealed a relatively high level of intermarriage among Iranian men.59
SPATIAL CONCENTRATION
Spatial concentration has also often been an important indicator of an immigrant community's assimilation process. The spatial-residential model essentially states that increasing socioeconomic attainment, longer residence in the United States, and higher generational status (second generation is "higher" than first, third is higher than second, etc.) leads to decreasing spatial concentration for an ethnic group. Most newly arrived immigrants, including most Iranian immigrants, are concentrated in a handful of states and metropolitan areas.
It is interesting to note that, while Iranian Americans have achieved high socioeconomic levels, they have not yet residentially integrated with the majority population in large numbers. However, the pattern of settlement of Iranians has not resulted in a geographically segregated ethnic neighborhood, defined by a dense area in which local ethnic businesses cater mostly to other co-ethnics, and co-ethnics live close together in residentially segregated areas (such as for example, Chinatown). Although Iranians have a preference for living in particular states and regions due to pre-existing family and business ties, their geographic patterns have not resulted in one central community in any particular metropolitan area. This is because immigrant groups with high levels of income and high socioeconomic status, such as Iranians, do not rely on co-ethnic ties as much as immigrants with low income.60 The 2005-2007 American Community Survey found that 37 percent of Iranian Americans lived in California, with Los Angeles being home to the largest community in that state. There are also large concentrations of Iranian Americans in New York, Texas, Maryland, Virginia, Georgia, Florida, and Washington, D.C. This spatial concentration may be due to the relatively short time period during which Iranian Americans have existed
55 U.S. Census Bureau; (08 April 2014 56"Public Opinion Survey of Iranian Americans," Commissioned by the Public Affairs Alliance of Iranian Americans (PAAIA), and conducted by Zogby International, 2008. 57 Ansari, "Iranian Immigrants," 1091 be Bozorgmehr and Douglas, `Success(ion)', 8. 69 Shideh Hanassab and Romeria Tidwell, "Intramarriage and Intermarriage: Young Iranians in Los Angeles," International Journal of Intercultural Relations 22, no. 4 (November 1, 1998): 395-408, doi:10.101650147-1767(98)00015-7. 60 Alejandro Portes, Immigrant America: A Portrait, 2nd ed (Berkeley: University of California Press, 1996).
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in large numbers, compared to many other immigrant communities, as well as to economic and educational opportunities and the presence of local support networks in these states. For example, places such as Houston, Texas, which have a relatively low per capita cost of living and more non-technical jobs, are now home to an increasing number of Iranian Americans, especially those for whom economic concerns are of paramount importance.
SOCIOECONOMIC STATUS
The fourth benchmark that is traditionally used to measure assimilation is socioeconomic status, defined by educational attainment, occupation, and income. By measuring socioeconomic status, researchers can determine if immigrants eventually catch up to native-born citizens in terms of their professional and employment characteristics and, in turn, the extent to which they contribute to the decline of ethnic boundaries. Moreover, entry into the occupational and economic mainstream also leads to increased social assimilation, as there is increased contact on equal terms across ethnic lines in both the workplace and neighborhood.
Measured by socioeconomic criteria, the Iranian American community began their immigrant journey with exceptional educational attainment, and currently has integrated very well with the majority population. An overview of socioeconomic characteristics of the Iranian American community based on the 2000 United States census, completed by the Iranian Studies Group at the Massachusetts Institute of Technology (MIT) in 2005, suggests that the educational level of Iranian Americans is well above the national average.61 The second generation of Irani 15 iericans is still in the process of completing their education, and it is thus too early to assess their attainment, but the overall trajectory of educational attainment is extremely positive, especially among women and girls.62 Iranian Americans have an overall extremely high level of educational attainment, above the aggregate level for all native-born and all foreign-born persons in the United States.
In the United States Census Bureau's 2011 American Community Survey (ACS) 1-Year Estimates, fifty-eight percent of Iranian Americans age 25 or over were said to have received at least a B.A.63 In comparison, the percentage of Americans as a whole (also 25 or over) receiving a B.A. or a higher degree only surpassed thirty percent for the first time in the 2011 census. With more than 27 percent of Iranian Americans over the age of 25 having a graduate degree or above, Iranian Americans are among the most highly-educated ethnic groups in the United States.
Iranian Americans' economic achievements are equally impressive. The MIT study analyzed data from the 2000 census and concluded that the per capita average income for Iranian Americans was 50 percent higher than that of the nation as a whole, while average family income was 38 percent higher. According to Ronald H. Bayer's Multicultural America: An Encyclopedia of the Newest Americans, about 50 percent of all working Iranian Americans are in professional and managerial occupations, far surpassing any other group in the United States today."
In the 2013 National Public Opinion Survey of Iranian Americans commissioned by PAAIA, a majority-54 percent—stated that their annual income was $60,000 or more, a figure similar to previous surveys.65 According to Census Bureau data for 2011, the last year currently available, only 42 percent of
61 Iranian Studies Group at MIT, Iranian American Community Survey Results, 2005". Web.mit.edu. Retrieved November 28, 2011. 62 Mehdi Bozorgmehr and Daniel Douglas, "Success(ion): Second-Generation Iranian Americans.," Iranian Studies 44, no. 1 (January 2011): 3-24.
63 United States Census Bureau; American Community Survey, 2011 American Community Survey 1-Year Estimates, Table 50201; generated by Morad Ghorban; using American FactFinder ; (24 April 2013).
Ansari, "Iranian Immigrants," 1081. 65 "2013 National Public Opinion Survey of Iranian Americans." Commissioned by the Public Affairs Alliance of Iranian Americans (PAAIA), and conducted by George Mason University Center for Social Science Research. Citation on page 23.
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Americans as a whole earned at the same rate.66 The 2009-2011 American Community Survey listed the median household income of Iranian Americans at $61,463, far above the median income for all foreignborn persons in the United States, $47,275, and above the household income for native-born persons, $52,065. In addition, the per-capita income of Iranian Americans in the 2009-2011 American Community Survey is 1.7 times greater than the native-born population.67 Thirty-two percent of Iranian Americans in the 2013 survey reported a household income of $100,000 or more, whereas the 2011 Census Bureau figures showed only 21 percent of Americans as a whole earning that much.68
WHAT DOES THE FUTURE HOLD?
As stated in the beginning of this report, there are many impediments to conducting a thorough analysis of the assimilation process of Iranian Americans within the larger American society. In addition to lack of self-identification among many Iranian Americans on demographic surveys, the Iranian American community is also one of the newer immigrant communities in the United States. It is widely accepted that the immigrant generation changes as it accommodates itself to life in a new society, but that these changes are usually quite limited for individuals who have come to the United States as adults. Thus, it is only with the passage of at least three generations that it is possible to assess the assimilation process of the Iranian American community Because many of second-generation Iranian Americans are still young, studies on Iranian American assimilation are, therefore, currently limited in their scope.
Given these constraints, this report aims to assess assimilation among Iranian Americans as fairly as possible. What was found is that while Iranian 16 icans have a high level of English proficiency, a high intermarriage rate, and, as a group, a relatively high socioeconomic status, they are still spatially concentrated in a handful of areas. The report does not aim to make any claims about which of these four benchmarks, traditionally used to measure assimilation, is most important, but to use the benchmarks to describe the evolution of the Iranian American community in these areas. However, though the first three measures point to a steady movement towards assimilation, the latter is a sign that an immigrant community is in the early stages of the assimilation process.
As the first generation slowly gives way to the second generation of Iranian Americans, the assimilation process will further evolve. Many first-generation Iranian American immigrants feel a deep responsibility to ensure that their culture and heritage is celebrated by future generations. It is of particular importance to this generation, many of whose members grew up in Iran and still consider it to be "home," to ensure that the Iranian culture remains alive and is celebrated fully in the years and decades to come. As a result, many first-generation Iranian Americans have been significant contributors to the founding of a number of local and national organizations that maintain, enrich, and celebrate Iranian culture and presence.
This passion to preserve their culture has paid off. During the last 15 years, the community has undergone a process of "reverse assimilation," in which younger Iranian Americans have re-embraced their heritage and developed stronger bonds with Iranian American communities throughout the United States. This process has taken many forms, from visiting Iran, taking Persian language classes in college, writing memoirs of their experiences (such as Firoozeh Dumas's Funny in Farsi: A Memoir of Growing Up Iranian in America, among many others), the establishment of Persian music bands, and the creation of websites about Iran and its culture. Reverse assimilation has also included the creation of national organizations aimed at providing a variety of cultural, civic, educational and humanitarian programs for the community (such as PAAIA, Pars Equality Foundation and Iranian Alliances Across Borders),
66 Table H-9 Race of Head of Household by Median and Mean Income, US Census Bureau, retrieved 2013-05-29. 61 American Community Survey Factfinder
IBID
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professional associations (such as the Iranian American Bar Association and the Iranian American Medical Association, to count only two) summer camps, conferences by different Iranian organizations (such as PAAIA, IAAB, and the National Iranian American Council), and participation in Persian parades and celebrations.
The first generation of Iranian Americans is not the only group focused on the evolution of the Iranian American community; the second generation is also keenly interested. Today, many of the community's members are actively involved in civic activities, political campaigns, days of service, and similar programs. The coming of age of the second generation of Iranians in the post-9/11 era has also given them a renewed sense of ethnic solidarity and pride in asserting their civil rights as Iranian Americans and increasing their political and civic engagement in the American democratic process.69
According to PAAIA's 2013 National Public Opinion Survey of Iranian Americans, 19 percent stated that they have volunteered for a political candidate or campaign, while 29 percent have written a letter or called on a public official and 30 percent have donated to a political candidate or campaign.79 In November 2012, Cyrus Habib of Washington 17 [ a political glass ceiling by becoming the first Iranian American elected to a state legislature.71 His campaign received support from Iranian Americans throughout the country. Many others are bound to follow in his footsteps, adding to the amazing story of Iranian American assimilation.
There is much that the Iranian American community has to accomplish over the next few decades. As a well-educated and highly accomplished immigrant community, Iranian Americans have much to contribute to the economic, social, and cultural fabric of America. As they do so, they will certainly continue to ensure that their rich heritage, values for peace and progress, and their desire to be productive members of their new country are pursued. This renewed vigor also provides hope for closer transnational ties between the people of Iran and those in the U.S. and a more open and positive relationship between the two countries. The United States, Iran, and the world will be much more successful as a result.
69 Bakalian and Bozorgmehr, Backlash 9/11. 70 "2013 National Public Opinion Survey," 11. 71 "Candidate Makes History, Becoming First Iranian American Elected to a State Legislature." PAAIA website. Available at http://www.paaia.org/CMS/candidate-makes-history-becoming-first-Iranian American-elected-to-a-statelegislature.asox
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Dana, Leo Paul, editor. Handbook of Research on Ethnic Minority Entrepreneurship: A Co-evolutionary View on Resource Management, Northampton, Edward Elgar Publishing, 2001.
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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 79 of 80
IRANIAN AMERICANS IMMIGRATION AND ASSIMILATION

Ferdowsi. Ali. "Hajj Sayyah," Encyclopcedia Iranica, XI/5, pp. 556-60, and XI/6, pp.561; available online at http://www.iranicaonline.org/articles/hajj-sayyah (accessed online at 26 June 2013).

Gold, Steven J., and Mehdi Bozorgmehr. "Middle East and North Africa." In The New, 518-33. First. C: Harv, 2007.

H.R.3525 Enhanced Border Security and Visa Entry Reform Act of 2002, n.d. http ://thomas.loc. gov/cgi-bin/query/F?c107 :1 : ./temp/—c107462F SF:e40118 :

Hanassab, Shideh, and Romeria Tidwell. "Intramarriage and Intermarriage: Young Iranians in Los Angeles." International Journal of Intercultural Relations 22, no. 4 (November 1, 1998): 395-408. doi:10.1016/S0147-1767(98)00015-7.

Hakimzadeh, Shirin (2006). "Iran: A Vast Diaspora Abroad and Millions of Refugees at Home."

Migration

Policy

Institute;

available

online

at

http ://www. m i grafi onin format ion . o rg/feature/di splay. cfm?ID=424

Iranian Studies Group at MIT, Iranian American Community Survey Results, 2005". Web.mit.edu. Retrieved November 28, 2011.

Jenks, Rosemary. "The Enhanced Border Security and Visa Reform Act of 2002, H.R. 3525." Center For

Immigration Studies, June 2002.

Accessed November 6, 2013.

http ://cis.org/EnhancedBorderSecurityVisaRefoimAct2002-HR3525

Kohanloo, Michelle. "IABA, NIAC and IAPAC Hold Unity Campaign." NIAC (National Iranian

American Council), December 1, 2002.

Accessed November 6, 2013.

http ://www.niacouncil.org/site/News2?page=NewsArticle&id=5821&security=l&news_iv_ctr1=10

63

Mandi, Ali Akbar. "Ethnic Identity among Second-Generation Iranians in the United States." Iranian Studies 31, no. 1 (January 1, 1998): 77-95. doi:10.2307/4311120.

McCann, Joseph T. Terrorism on American Soil: A Concise History of Plots and Perpetrators from the Famous to the Forgotten. Boulder, Sentient Publications, 2006, 141.

Mills, Gregory J., "Beyond the Backlash: Muslim and Middle Eastern Immigrants' Experiences in America, Ten Years Post-9/11" (2012). Graduate School Theses and Dissertations.

Mobasher. "Iranians and Iranian Americans, 1940—Present." In Immigrants in American History: Arrival, Adaptation, and Integration., 999-1010, 2013.

Mobasher, Mohsen M. Iranians in Texas: Migration, Politics, and Ethnic Identity. University of Texas Press, 2012), 2.

Modarres, Ali. "Settlement Patterns of Iranians in the United States." Iranian Studies 31, no. 1 (January 1, 1998): 31-49. doi:10.2307/4311117.

Mostofi, Nilou. "Who We Are: The Perplexity of Iranian-American Identity." The Sociological Quarterly 44, no. 4 (October 1, 2003): 681-703. doi:10.2307/4120728.

Naficy, Hamid. The Making of Exile Cultures: Iranian Television in Los Angeles. U of Minnesota Press, 1993.

Portes, Alejandro. Immigrant America: A Portrait. 2nd ed. Berkeley: University of California Press, 1996.

Public Affairs Alliance of Iranian Americans. "Public Opinion Survey of American Perception of Iranian Americans." Commissioned by the Public Affairs Alliance of Iranian Americans (PAAIA) and conducted by Zogby International. December 2008. Available online at http ://www.p aaia. org/CM S/D ata/Sites/l/PDF s/finalreport-surveyofamericanperc eptions.pdf.

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Case 1:17-cv-00255-TSC Document 107-2 Filed 10/12/17 Page 80 of 80
IRANIAN AMERICANS IMMIGRATION AND ASSIMILATION
Rumbaut, Ruben G. "The Coming of the Second Generation• Immigration and Ethnic Mobility in Southern California." Annals of the American Academy of Political and Social Science 620 (November 1, 2008): 196-236.
Sabagh, Georges, and Mehdi Bozorgmehr. "Are the Characteristics of Exiles Different from Immigrants? The Case of Iranians in Los Angeles." Institute for Social Science Research, May 1, 1986. http://escholarship.org/uchtem/54d5s0q5.
Sensenbrenner, F. "H.R.3525 - 107th Congress (2001-2002): Enhanced Border Security and Visa Entry Reform Act of 2002." Legislation, May 14, 2002. http ://beta.congress.gov/bill/107thcongress/house-bill/3525.
Waters, M.C., R. Ueda, and H.B. Marrow. The New Americans: A Guide to Immigration since 1965. Harvard University Press Reference Library. Harvard University Press, 2009. http://books.google.com/books?id=z-y_q4LeCEC.
"Welcome to the Annual Persian Parade." New York Persian Parade, n.d. http://www.nypp.org/dynamic.asp?fmt=f&id=parade.
Zarrabhian, Ellie, Ph.D. "Personality Change and Identity Formation in Iranian Americans." From the website of Centerpiece Foundation: A Holistic Center for Psychotherapy & Spirituality." Available online at: http://centeronpeace.com/index.php/personality-change-Iranian Americans/
21 20 1 4 - PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 1 of 103
EXHIBIT 4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 2 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF SHIVA HISSONG IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Shiva Hissong, hereby declare and state as follows: 1. My name is Shiva Hissong. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I reside in Spokane, Washington. In November 2016 I received authorization to work in the United States but am currently a stay-at-home mother. My husband works as an architect in Spokane, and owns an architecture firm and an advertising agency.

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 3 of 103
3. I am a citizen of Iran and a Green Card holder (legal permanent resident) of the United States.
4. 1 am a Muslim and adhere to the religion of Islam. 5. I was a student in Italy from August 2012 until March 2016. I was there on a student visa and earned credits toward my Bachelor's Degree in fashion. While studying in Italy, I met my husband in Rome. 6. After my future husband and I got engaged, I applied for and received a K-1 visa. 7. I entered the United States on this K-1 visa on March 3, 2016. 8. My husband and I were married on April 17, 2016 and hosted a wedding ceremony on August 28, 2016 in Spokane, Washington. 9. My parents reside in Tehran, Iran. My father has been ill with Parkinson's disease for the past ten years, and his condition has significantly deteriorated in the last three to four years. 10. My parents were unable to obtain visas to attend my wedding due to a lack of visa appointments at the United States Embassies in the United Arab Emirates, Armenia, or Turkey. 11. Subsequently, my parents decided that they would try to visit the United States for the birth of their grandson. 12. My parents applied for a tourist visa to come visit me and, in October 2016, had an interview at the United States Embassy in Yerevan, Armenia. At the conclusion of the interview the consular official informed my parents that their applications were being referred for administrative processing. He explained that administrative processing was akin to a security or background check.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 4 of 103
13. The consular official never told my parents, either during or after their interview, that their visa was either approved or refused. To date, neither they nor I have received any correspondence indicating that their visa has been either refused or approved.
14. I very frequently check the website of the U.S. Embassy in Armenia for any updates on my parents' visa applications.
15. My son was born on November 28, 2016. My parents were not present for his birth pending their visa applications and administrative process.
16. In light of my father's illness and the extended application process for my parents to obtain a visa to visit the United States, my parents and I made plans to meet in Dubai, United Arab Emirates in March 2017 so that my parents could meet their grandson.
II. Harm From January 27, 2017 Executive Order:
17. I understand that President Donald Trump signed an Executive Order on January 27, 2017 (January 27 Executive Order) immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of Iranian citizens into the United States.
18. The morning after the January 27 Executive Order was signed, the immigration attorney that I had retained advised me that I should not leave the United States due to the January 27 Executive Order.
19. As a result of the January 27 Executive Order, I became very concerned about my ability to exit and reenter the United States, and decided to cancel my family's visit to the United Arab Emirates in March 2017. My parents were not able to meet their grandson as originally planned.
20. In addition, prior to the signing of the Executive Order, my husband and I had purchased plane tickets to visit Amsterdam, the Netherlands. Following the signing of the
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 5 of 103
Executive Order, I became concerned about my ability to exit and reenter the United States and subsequently decided not to visit the Netherlands as originally planned.
III. Harm From March 6, 2017 Executive Order
2L I understand that President Trump issued an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
22. On March 29, 2017, I checked the website for updates about my parents' visa. The website indicated that my parents' case had been created on October 12, 2016. The website also displayed the following message: "Your visa case is currently undergoing necessary administrative processing. This processing can take several weeks. Please follow any instructions provided by the Consular Officer at the time of your interview. If further information is needed, you will be contacted. If your visa application is approved, it will be processed and mailed/available within two business days. For more information, please visit U.S. Embassy Yerevan."
23. On May 21st, we travelled to Bodrum, Turkey so that my parents could finally meet their grandson. When we were boarding the leg of our return flight from Paris, France to the United States on July 2, we were pulled out of the boarding line at the departure gate by security. Security searched all of my hand luggage, including our baby's diaper bag. We were told it was a "random" search, but I knew it was not random because I clearly saw my name on a list held by security. IV. Harm From September 24, 2017 Executive Order
24. I understand that President Trump issued an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 6 of 103
25. I understand that the September 24 Executive Order will block the issuance of my parents' tourist visas.
26. I have checked the online status of my parents' tourist visas. As of the date of this declaration, my parents' visa application remains in "administrative processing."
27. I have received no guidance, information, clarity, instruction, or correspondence from the United States government concerning the issuance of visas and/or whether my parents' visas will be issued in course or whether it will not be issued under the terms of the September 24 Executive Order.
28. As a result of the confusion and uncertainty surrounding my parents' visa applications under the terms of the Executive Order, my family and I have been greatly emotionally distressed about whether my family and I will be able to host my parents in our home here in the United States.
29. Given my father's illness, I am concerned about whether he and my mother will continue to be able to meet us in third countries to see one another in the future. Doing so will likely become more difficult for them in the future, and doing so puts a strain on all of us.
30. The three Executive Orders -- including the September 24 Executive Order -have made me feel as though I can never be "at home" here in the United States. I have a family here, I have worked here, and my baby was born here, but I feel like I am just waiting for the other shoe to drop. Sometimes I even worry that I might get deported even though I am a lawful permanent resident. The Executive Orders have caused me to feel that, no matter what my visa status is, I will always be a foreigner or stranger in this country.
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 7 of 103 I, Shiva Hissong, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 2 day of October , 2017, in _Spokane, Washington_.
/s/ Shiva Hissong Shiva Hissong
6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 8 of 103
Exhibit to Declaration of Shiva Hissong

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EXHIBIT 5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 12 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF MONTRA YAZDANI IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Montra Yazdani, hereby declare and state as follows: 1. My name is Montra Yazdani. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I reside in Washington, DC. I was born in Iran. 3. I first came to the United States with my parents and brother in October 2001 because my father was invited to pursue research at the Cleveland Clinic. My father is an ophthalmologist in Iran. He was invited by the director of the Center for Genetic Eye Diseases at

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 13 of 103
the Cleveland Clinic's Cole Eye Institute to collaborate on an ongoing research relating to a genetic mutation causing congenital fibrosis of extraocular muscles of the eye, which is a type of disease.
4. The Cleveland Clinic arranged and helped us apply for J visas. My family and I entered the United States on JI and J2 visas.
5. My father's research was completed in 2002. It was a great success as they were able to discover the specific gene mutation which caused the eye disease at issue. The findings of the research, authored by my father, were published in the American Journal of Ophthalmology.
6. My parents returned to Iran in 2002. At that time, my brother had already begun school at Cleveland State University. He applied for and received an Fl visa. I had also enrolled in a private high school in Cleveland and received an F 1 visa. One year later, we both attended the Miami University of Ohio. My brother went on to medical school in St. Louis, Missouri while I attended law school in San Francisco. After receiving my J.D., I pursued a Master of Laws (LLM) degree in Intellectual Property (IP) law in Washington, DC.
7. For fifteen years, my brother and I never went back to Iran because our visas were single entry and would expire upon our departure from the United States
8. During this time, my parents visited us in the United States roughly every two years. They were able to apply for and receive tourist visas to visit us. Since their departure in 2002, they visited the United States on tourist visas a total of seven times.
9. I met and married my husband, who is a U.S.- born citizen, in the United States. My brother, who is now a neuro-radiologist, met and married his wife, who is a U.S.- born citizen, here. My brother and his wife have two children and live in Charleston, SC. His daughter is three years old and his son is almost one year old.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 14 of 103
10. I am now a practicing attorney in Washington, DC. I work at a boutique intellectual property law firm practicing patent and trademark prosecution. I am a board member of the Iranian American Bar Association (IABA). I became a naturalized United States citizen on August 11, 2015.
11. My brother is a lawful permanent resident of the United States. He has applied for his citizenship.
12. Given the fact that my brother and I have settled down with our new families in the United States, and because of our increased desire to spend more time with our parents as they are aging, I petitioned for my parents to receive their green card in early 2016. Our parents have a mutually strong desire to move to the United States to spend the rest of their lives with their children and now grandchildren.
13. Once my parent's green card petition was approved, it was forwarded for consular processing in Abu Dhabi. Upon completing and submitting all the required documents, performing their fingerprinting and medical examination, my parents were scheduled for a visa interview in Abu Dhabi in July 2017. Their immigrant visas were both approved at the interview. The consular official told my mother that my mother's visa could be issued immediately, but that my father's visa had to go through additional administrative processing. My mother chose not to receive her visa at that moment and instead wanted to wait for my father's visa to be processed, so that their visas could be issued at the same time.
14. Immediately after their interview, we received a secondary 'supplemental questions for visa applicants' questionnaire for my father's application via e-mail. We submitted the responses to this extensively detailed questionnaire on August 5, 2017. We have not been able to confirm the status of my father's visa through the link provided to us in the supplemental
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 15 of 103
questionnaire email. We were nearing the end of the process and my brother and I were very excited that my parents would soon be joining us in the United States.
IV. Harm From September 24, 2017 Executive Order
15. I understand that President Trump issued an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
16. I understand that the September 24 Executive Order will block the issuance of my parents' immigrant visas; or, at minimum, it will block the issuance of my father's visa, and my mother will not immigrate to the United States without my father.
17. I have checked the online status of my parents' visas. Both my mother and father's online visa status on the U.S. Department of State's website indicates that their visa is undergoing administrative processing.
18. My father's visa status on the Abu Dhabi embassy's website says "no information has been found about the case number you entered."
19. We have been unable to find out any further information regarding the impact of the September 24 Executive Order on my parents' visas.
20. My brother and I are deeply saddened by the fact that this travel ban will prevent us from having our parents visit us at our home and spend time with them in our home country. I have now lived more than half of my adult life here in the United States and feel more American than an Iranian. As an American citizen, I have contributed greatly to U.S. society for the past sixteen years of my life and yet now I am being banned from bringing my parents here because of the country in which I was born.
21. In an ideal world, my parents would come to visit me at my house. But now, the best case scenario for us is to meet in Europe. That is also difficult for me because I have to take
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 16 of 103
time off work - ideally two weeks at a time and then spend a lot of money to travel to Europe to see them; if my husband would like to join me to visit his in-laws, it is even more difficult for both of us to take time off work and spend even more money on flights and hotels. It is a great burden on both of us to keep traveling to see one another.
22. I am not able to go to Iran to visit my parents. I went back to Iran for the first time in 15 years in the summer of 2016. When I landed at the airport in Iran, I was taken to a special room and interrogated. The Iranian government officials asked me why I was traveling to Iran and demanded detailed information such as the addresses, phone numbers, emails, job titles, etc. of me, my husband, my brother and parents. They further interrogated me as to what type of work I do in the U.S. and why I was visiting Iran after 15 years.
23. I have recently noticed that multiple individuals who work for the national Iranian Radio and Television have viewed my Linkedln profile.
24. As a result, I feel like the Iranian Government is researching and monitoring me. They may have started surveilling me because I am an Iranian-American attorney working in Washington, DC and have close connections and pictures linking me with many high profile individuals and organizations to which the Iranian government is opposed.
25. I would not feel safe traveling to Iran right now. 26. As a result of feeling unsafe traveling to Iran, neither me nor my parents can visit each other in our homes. The forced separation from my parents is making it more frustrating and difficult for me to live in and be a citizen of the United States and make my contribution here. I can't help but think that, if my parents weren't from one of the countries listed in the September 24 Executive Order, I would not be banned from seeing them. It's unfair.
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 17 of 103 27. My brother would like my parents to spend time with his young children and
would like for his children to have the added value of growing up with grandparents. It would be tragic if my parents were not able to come here to see their grandchildren grow up.
28. In thinking about having children of my own, I know that I would like to have my mother by my side to help me. I had always planned that my mother would be able to get a green card and be here by 2019, which is when my husband and I were hoping to have a baby. I cannot imagine raising a child without my mother to help me. This travel ban has made me re-consider having children until my mom is able to move and live in the United States.
6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 18 of 103 I, Montra Yazdani, declare under penalty of perjury that the foregoing is true and correct
to the best of my knowledge. Executed this 1 day of October , 2017, in Alexandria, Virginia_.
/s/ Montra Yazdani Montra Yazdani
7

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 19 of 103
Exhibit to Declaration of Montra Yazdani

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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 22 of 103
EXHIBIT 6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 23 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF SEPIDEH GHAJAR IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Sepideh Ghajar, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background: 2. I am 36 years old and currently reside in Mountain View, California. I am the cofounder and chief executive officer of Taygo, located in Palo Alto and San Carlos, California. I have a bachelor's degree in software engineering from the University of Tehran. 3. I am an Australian Citizen and a U.S. Green Card holder. I was born in Iran and am also an Iranian citizen.

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 24 of 103
4. After graduating from the University of Tehran, I was selected for a highly competitive internship program at IBM. This internship soon turned into a full-time position. My experience at IBM deepened the passion I had had from a very young age for technology.
5. In 2005, at the age of 24, I moved from Iran to Australia under the skilled visa program in order to build my technical skills and ultimately pursue my dream of starting my own company. I lived in Melbourne, Australia for approximately seven years. During that time, I became an Australian citizen and worked as a software engineer, web application architect, and freelance Microsoft consultant.
6. After discussing my goals with several mentors who had started businesses in Australia, I began to realize that conditions in the United States were much more favorable for entrepreneurs.
7. In 2012, I left Australia and moved to New York City. While in New York, I coinvented a new technology platform to innovate digital workspace interaction experiences, known today as LiveTiles. LiveTiles became a success soon after it was released and turned into an acquisition before its one-year anniversary.
8. In 2015, I moved to Silicon Valley in order to finally start own venture. The company I founded, Taygo, was officially registered last year, and we have thus far hired ten people, all but one of whom are American citizens.
9. Since founding Taygo, my workload has been extremely demanding. I have been almost solely responsible for building a professional network, attracting investors, finding customers, and recruiting talent. Because I do not have a partner or any family in California, this process has been very emotionally difficult and isolating for me.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 25 of 103
10. In order to help me get through this challenging period, I asked my mother, Masoumeh Jamei, to come stay with me. My mother is 60 years old and an Iranian citizen.
11. My mother agreed and immediately applied for a B-1/B-2 visa. She travelled to American Embassy in Dubai for her visa interview approximately one and a half years ago, and was told she would be notified once a decision was reached on her application. However, she heard nothing from the Embassy after that, despite checking multiple email accounts and the Embassy website daily.
12. To this day, when we check the website of the American Embassy in Dubai, it says the status of my mother's application is "processing."
13. My mother was told by a friend that her first visa application was likely a lost cause, and she should submit a second application. She did so, and again travelled to Dubai in June 2017. When she arrived, Embassy officials told her that her second application could not be processed because her first application had in fact been approved several months earlier. When she explained that she had not received any notification of this approval, Embassy officials told her that the status listed on the Embassy website was inaccurate and could not be relied upon. Nevertheless, because she had never shown up to retrieve the visa, her application would have to be renewed.
14. My mother was told that the renewal process should take approximately three to four weeks. However, after several months, we still have not heard anything from the Embassy.
II. Harm Caused by the September 24, 2017 Executive Order:
15. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 26 of 103
16. I have checked the online status of my mother's visa. As of the date that I signed this declaration, the status says, "processing."
17. To date, I have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my mother's visa application.
18. The Executive Order and related guidance have caused me and my mother great inconvenience, confusion, and pain.
19. I cannot travel to Iran to see my mother because I am nervous that I may be detained there as a result of my last name, which is associated with monarchy in Iran and has made me the subject of harassment in the past. Additionally, all my employees, investors, and customers are relying on me to make the company a success, and I cannot afford to take time off to travel internationally. In fact, I have not taken time off in the past three years.
20. 1 am worried that, if the ban takes effect, I may not be able to see my mother for many years. We are very close, and being separated from her for so long, especially during such a stressful time, has been extremely difficult.
21. I feel that the September 24 Executive Order is unfairly discriminating against good, hardworking people who are making important contributions to American society. It seems very unfair that, despite the fact that I have created jobs in this country, I myself have have had to suffer being separated from my family because of the Executive Order.
22. As a result of everything that has happened, I no longer feel at home in this country as I once did. I feel like my contributions are not valued, and that I am seen as a threat by the government.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 27 of 103 I, Sepideh Ghajar, declare under penalty of perjury that the foregoing is true and correct
to the best of my knowledge. Executed this 2 day of Oct , 2017, inSan Carlos CA
Sepideh Ghajar
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 28 of 103
EXHIBIT 7

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 29 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF MOHAMMED JAHANFAR IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Mohammed Jahanfar, hereby declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background:
2. I am 39 years old and currently reside in Tarzana, California. I am employed with AAA as an insurance sales agent.
3. I am a United States citizen of Iranian origin. 4. I am a Muslim, although I am not a practicing Muslim. 5. I immigrated to the United States on July 11, 1987. I was nine years old.

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 30 of 103
6. In 1996, two weeks after I graduated from high school, I enlisted in the United States Navy. I served in the U.S. Navy until 1999, when I was honorably discharged as an E-3. The country of Iran has refused to renew my Iranian passport since the time I served in the U.S. Navy.
7. I became a United States citizen in 2003. 8. My mother, stepfather, aunt, several cousins, and mother's uncle all live in the United States. 9. My fiancee currently lives in Tehran. She is Iranian and identifies as a Muslim, although she is not a practicing Muslim. 10. My fiancee is currently pursuing a Master's degree in international studies, English translation, and English studies. Prior to seeking her Master's degree, she worked as a brand manager in a department store. Now she is focusing on her studies and writing her thesis. 11. I have known my fiancee since childhood. When I was five and she was eight, we were playmates. 12. We reconnected a year and a half ago through social media. We began talking and met up in Dubai, United Arab Emirates (UAE). I knew that I wanted to spend the rest of my life with her, so I proposed to her, and she accepted. 13. I visited my fiancée in Istanbul in February of 2017, and in June and September I travelled to visit her in Abu Dhabi. It's taxing to travel thirteen and seventeen hours nonstop. I have suffered from deep vein thrombosis and pulmonary embolism, and I've had multiple back surgeries in the past, so flying is uncomfortable. But I'm willing to endure the long flights so I can be with the woman I love.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 31 of 103
14. After becoming engaged, my fiancee and I engaged the services of an immigration attorney to assist us with the visa process for my fiancee to move to the United States.
15. The petition for my fiancee's K-1 visa was submitted on January 13, 2017. The petition was approved, and it was sent to the U.S. embassy in Abu Dhabi on May 23, 2017.
16. Both my fiancee and I have undergone background checks as part of the visa application process.
17. On August 15, 2017, U.S. State Department website showing the status of my fiancee's case was updated to inform us that the case was ready for an interview.
18. On September 11, 2017, my fiancee and I traveled to Abu Dhabi for the immigrant visa interview. While in Abu Dhabi, my fiancee completed her medical exam. However, when we went to the embassy for the interview, the embassy turned us away, saying that we should wait for an email from the embassy.
19. My fiancee returned to Tehran, and I returned to California. 20. Since that date, neither of us, nor our immigration attorney, has received any updates, notification, or information from the embassy. 21. I have called the embassy in Abu Dhabi multiple times seeking information about my fiancee's visa, but when I call, they will not transfer me to the consular section or provide any updates. They tell me I have to send an email. 22. I have sent multiple emails to the embassy in Abu Dhabi to check the status of my fiancee's visa, but I haven't received any responses.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 32 of 103
23. I frequently check the U.S. State Department website for updates on her visa, but online case status has not been updated since our September 11, 2017 trip to Abu Dhabi. It still says that the case is ready for an interview.
24. I paid approximately $4,600 in travel expenses to Abu Dhabi for my fiancee's immigrant visa interview, which ultimately did not take place. I have also paid $2,500 in legal fees.
II. Harm From September 24, 2017 Executive Order
25. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
26. I have checked the online status of my fiancee's visa. As of the date that I signed this declaration, the status says that the case is ready for an interview.
27. To date, I have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my fiancee's visa application.
28. The Executive Orders and related guidance have caused me and my fiancee great pain.
29. I feel discriminated against. I feel that we are non-existent in this country, and treated as third-class citizens.
30. It feels like we have no rights. We are not allowed to see our loved ones, our grandparents, uncles, aunts, nieces, or nephews. The U.S. Government is separating me from my loved ones because we are from Iran.
31. I believe that in the United States we have freedom of speech, but now it feels like the Government is trying to silence us.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 33 of 103 32. I served in the U.S. Navy because I wanted to give back to this country for
allowing me to become a citizen, for allowing me to live here, and for allowing me to flee persecution and dictatorship. But now, the Government wants to stop me from bringing my fiancee here. When I signed up to serve in the Navy, I never imagined that the Government would prohibit U.S. citizens from bringing their loved ones to America. It feels like a terrible betrayal.
33. I want to build a life with my fiancee in the United States, and I am scared that, due to the September 24 Executive Order, my fiancee will be unable to receive her visa and immigrate to the United States. We will be unable to get married here and begin our life together here.
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 34 of 103

I, Mohammed Jahanfar, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this a day of 020 17, in 4 s lek4zrz FS:

wed Jahanfar

6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 35 of 103
EXHIBIT 8

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 36 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF MOHAMMAD REZA SHAERI IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Title 28 U.S.C. Section 1746, I, Mohammad Reza Shaeri, hereby declare and state as follows:
1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background:
2. I am 36 years old and currently reside in Lancaster, Pennsylvania. I am employed as a full-time engineer by Advanced Cooling Technologies, Inc., also in Lancaster. I have a master's degree and Ph.D. in mechanical engineering from the University of WisconsinMilwaukee.
3. I am an Iranian citizen and a permanent resident of the United States.
1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 37 of 103
4. I am a Muslim and adhere to the religion of Islam. 5. In January 2010, I left my home and family behind and came to the United States on an F-1 visa in order to pursue my education. 6. In March 2014, I received my Green Card through the National Interest Waiver program. In order to qualify for a National Interest Waiver, I had to prove that I had an advanced degree and that my research had substantial merit and importance to the national interests of the United States. 7. I have continued to live in the United States since 2010, and am a taxpayer. 8. I anticipate becoming a U.S. citizen by approximately June or July 2019. 9. In my current position at Advanced Cooling Technologies, Inc., I have successfully led several projects supported by the Navy, the Department of Energy, and other U.S. government entities. 10. I met my wife, Arezoo, in 2016 through a friend of the family. Arezoo is an Iranian Citizen, and currently studies at Massey University in Palmerston North, New Zealand. She is the recipient of a three-year Ph.D. scholarship, and plans to complete her Ph.D. in marketing and advertising by 2019. 11. In late October 2016, Arezoo visited the United States on a B-1/B-2 visa to participate in a conference related to her research. Though the trip was a brief one, we were eager to spend the rest of our lives together, so I proposed and we got married in November 2016, and we announced our marriage to our family and friends. 12. Though Arezoo's visa allowed her to remain in the U.S. for six months, she returned to New Zealand after five weeks in order to complete her studies.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 38 of 103
13. Because I anticipated gaining U.S. citizenship at approximately the same time that Arezoo was due to complete her Ph.D. program, I did not apply for a Green Card on her behalf right away. I knew that the process would be much easier once I became a citizen, so I planned to wait until 2019 to file an application.
14. Arezoo has applied for a visa twice since the March 6 Executive Order was issued, once in April 2017 and a second time in May 2017. Each time, Arezoo paid approximately $500 in processing fees and travel and hotel costs, as the U.S. Consulate is located in Auckland, New Zealand, hundreds of miles from where she lives.
15. Arezoo was issued a 214(b) rejection letter both times, despite the fact that she had a clean travel history and ample evidence proving her ties to New Zealand. Additionally, she had been required to submit a full background check to the government of New Zealand in order to travel there for her studies.
16. The U.S. Consulate official who issued the denials of Arezoo's most recent visa application was the same officer who had approved her visa application in 2016.
17. In an effort to expedite the processing of my wife's May 2017 visitor visa application, I reached out to my Congressman, Lloyd Smucker, with the help of my company's president, and explained that I was a job creator in his district who was being negatively impacted by the Executive Order. However, when Arezoo approached the Consular officials in New Zealand with this letter, they did not act on it in any way.
18. Given the difficulty my wife was having in getting her visa applications approved, I applied for an immigrant visa on her behalf on June 6, 2017. I have not received any communication as to how this application will be affected by the September 24 Executive Order.
II. Harm Caused by the September 24, 2017 Executive Order:
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 39 of 103
1. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of immigrant and visitor visas to Iranian citizens.
2. To date, I have received no guidance or clarity from any government entity about the impact of the September 24, 2017 Executive Order on my wife's visa application.
3. The Executive Order and related guidance have caused me and my wife great stress, confusion, and pain.
4. As a result of everything that has happened, I no longer feel at home in this country. I feel like all the years of hard work I have invested into becoming an American and contributing to this country's growth and success have been for nothing, and that the U.S. government does not value the efforts of people like me. I have trouble understanding why, even though I was awarded a Green Card specifically so that I could serve the national interests of the U.S., and have been doing so for eight years, the U.S. still views me as a threat. It is hard not to see the last eight years as having been wasted.
5. Likewise, my wife has been a law-abiding, hard-working person through her entire life, and could contribute so much to this country if she was given a chance. I wish the U.S. government would see that.
6. I feel that the recent Executive Order is telling people like me that we are not allowed to love who we want to love. We can only love people from certain countries.
7. My wife and I have not been able to see each other for many months, and the separation has been very painful for both of us. I am very worried that my wife will not be able to join me in the United States, and that I will have to leave behind everything I have worked so
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 40 of 103 hard for in order to be with her. Starting over again in another country will be extremely difficult at this point in my life.
8. The Executive Order has also made me feel isolated from my community, because I fear that other Americans see me the same way the government does, as a threat. I worry about harassment from people who have been influenced by the rhetoric surrounding the Executive Orders as well as by the Orders themselves.
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 41 of 103

I, Mohammad Reza Shaeri, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this 5dday ofOckaitr, 2017, in Lan caqei; piq ,

71------___------------
Mohammad Reza Shaeri

6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 42 of 103
EXHIBIT 9

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 43 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JOHN DOE #1 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #1, 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 and am competent to testify thereto. I. Background: 2. I am an Iranian citizen. I first arrived in the United States on an F-1 student visa in 2015. My visa expired on June 7, 2017. My wife accompanied me on an F-2 visa for spouses of students. Her visa expired on July 30, 2017. Both of our visas were multiple- entry visas. 3. I have a valid Form 1-20 that expires in 2020. It allows me to stay in the United States and study. However, if my wife or I leave the United States, we will need to apply for new visas in order to re-enter the country.

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 44 of 103
4. 1 do not have any family in the United States. My entire family, as well as my wife's family, lives in Iran.
5. In September 2015, I started a PhD program in Finance and Economics at Columbia University in New York, NY. While the program is formally five years long, most candidates typically take six years to complete their PhDs. I am currently in the third year of my PhD program.
6. My wife has a PhD in electrical engineering from the University of British Columbia in Vancouver, Canada. She has completed research on the newest generation of wireless communication systems and on energy harvesting and working toward more sustainable energy systems. She is a published author in the journal of the Institute of Electrical and Electronics Engineers (IEEE), the most prominent journal in the field of electrical engineering.
7. When we moved, my wife was planning to apply for a green card so that she could secure employment in her field in the United States. We paid $2,000.00 to retain an immigration attorney for the first phase of her green card application.
II. Harm From the January 27, 2017 Executive Order:
8. On or about December 24, 2016, my wife and I flew to Iran to visit our families. 9. On or about January 22, 2017, I flew back to the United States. My wife was planning to
join me later that week and had purchased a ticket for a January 28, 2017 Turkish Airlines flight from Esfahan, Iran to New York, NY. 10.On January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) preventing the entry of Iranian visa holders as well as others into the United States.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 45 of 103
11. My wife attempted to board her flight on January 28, but was prevented from boarding by Turkish Airlines, citing the January 27 Executive Order.
12. On or about January 30, 2017, my wife attempted to board a flight from Tehran, Iran to the United States, but was again turned away by the airline and not permitted to board.
13. My wife was unable to successfully board a flight and enter the United States until February 4, 2017.
III. Harm From September 24, 2017 Executive Order:
14.1 am aware that President Donald Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
15. The visas upon which my wife and I entered the United States expired this past summer. I am concerned that, if and when the September 24 Executive Order is enforced, it will make it difficult for my wife and I to re-apply for F-1 and F-2 visas.
16. As a result of this difficulty, my wife and I are currently separated indefinitely from our families in Iran. We are not making any plans to leave the United States for fear that we would not be able to renew our visas.
17. If I am forced to return to Iran for a family emergency or due to other circumstances while the September 24 Executive Order is enforced, and if any new visa application I submit is denied, I will be forced to drop out of my U.S. PhD program.
18. If I am forced to return to Iran permanently I will likely be unable to complete my PhD studies and it will be very difficult for me to find employment. I protested against the Iranian government during the Green Movement after the 2009 Iranian presidential election. I was detained for thirty days while I was an undergraduate student. As a result 3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 46 of 103
of my political activity, I was permanently enjoined from studying in Iran by the Iranian government. 19.Further, my wife is currently unable to seek employment in the United States. No one will give her an interview because she does not have work authorization. We are concerned that the September 24 Executive Order prevents her from seeking work authorization or legal permanent resident status. My wife has a PhD in her field and it is a shame for her not to be able to put her degree to good use. 20. In my opinion, it is very unlikely that the ban on entry will be lifted as to individuals from Iran. The September 24 Executive Order considers Iran to have "inadequate" protocols for information-sharing and other issues. It is very unlikely that Iran and the United States will reach agreement regarding the information that needs to be provided. Thus, I believe that the prohibition on entry of Iranian nationals into the United States is in effect permanent. 21. As a result of the travel bans, my wife and I have recently begun considering leaving the United States altogether. 22. If we leave the United States, we would have to abandon the life we have started here. However, if my wife is unable to work and we are unable to travel outside of the country to see our families, we may prefer to live permanently in another country. 23. I am joining this lawsuit as an anonymous plaintiff because various government agencies are named as Defendants, and I am scared of retaliation and consequences against me and my wife if I reveal my identity.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 47 of 103
Executed this 3 day of October , 2017, in New York, New York . /s/ John Doe #1 John Doe #1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 48 of 103
EXHIBIT 10

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 49 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JOHN DOE #9 IN SUPPORT OF PLAINTIFFS' MOTION FOR PREKIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #9, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background: 2. I currently reside in Iran and am an Iranian citizen. 3. For many years, it has been my dream to go to American and create a better life for myself and my family. 4. This past year, I was finally selected to receive a visa through the Diversity Immigrant Visa ("DV") program. The DV program makes up a small number of visas available

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 50 of 103
annually, drawn from random selection among all entries to individuals from countries with low rates of immigration to the United States.
5. The number of applicants to the DV program is extremely high. In 2015, the U.S. Department of State received approximately 14,418,063 online entries for approximately 50,000 available visas.
6. I was understandably overjoyed to have been selected despite such low odds, and immediately made plans to travel to Abu Dhabi, United Arab Emirates for my visa interview. My interview took place on June 7, 2017.
7. After my interview, I began to make arrangements to move. I informed my employer that I would probably be leaving very soon, and began to sell my belongings in order to help cover my travel expenses.
8. On August 13, 2017, 1 received an email informing me that, although administrative processing had been completed on my file, I would need to submit proof of a close familial relationship, current job, or job offer in the U.S. in order to be exempt from the March 6, 2017 Executive Order.
9. I scrambled to find a job so that I would not miss this once-in-a-lifetime opportunity to move to the United States. After two weeks of contacting everyone I could think of, I finally managed to secure a position with a car dealership in Los Angeles. I submitted proof of this job offer along with my passport to the Embassy in Abu Dhabi on August 29, 2017.
10. I was extremely surprised when, despite all my efforts to do what the Embassy asked of me in such a short period of time, my passport was returned to me with no visa inside on September 4, 2017.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 51 of 103
11. I found out on September 8, 2017 that the State Department had hit its 50,000 visa quota. A few weeks later, on September 24, 2017, I learned that President Trump had issued another Executive Order with different requirements than the March 6 Order. 1 do not know what this means for my case, and fear that I have lost my chance to immigrate to the United States forever, even though I followed all the rules and did everything I was supposed to do.
12. I am aware of approximately 189 other Iranian DV lottery winners who have also cleared administrative processing, but have been prevented from receiving visas because of the Executive Orders.
H. Harm Caused by the September 24, 2017 Executive Order:
13. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
14. The Executive Order and related guidance have caused me confusion, stress, and financial damage.
15. To date, I have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my visa application.
16. I fear that all of my hard work in putting together an application, travelling to Abu Dhabi, and making arrangements to move have been wasted. I feel like every time I do what the rules require of me, the rules change.
17. I love America and it has always been a great desire of mine to go there, but this process has been extremely painful for me, and I am beginning to feel as though the government of the United States does not care about people like me.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 52 of 103 18. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the
State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me for participating in this action.
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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 53 of 103

I, John Doe, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.

Executed this l day of October , 2017, in _Arak, Iran_.

/s/ John Doe #9 John Doe #9

5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 54 of 103
EXHIBIT 11

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 55 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

Public Affairs Alliance of Iranian Americans, )

Inc.

et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JOHN DOE #10 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, John Doe #10, hereby declare and state as follows: 1. 1 am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. I am 35 years old and currently reside in the United States. I received my Ph.D. in 2010 from a public university in the United States, and I currently work as an Assistant Professor at a different American public university. 3. I am a U.S. citizen by birth. 4. I am married. My wife is a citizen of Iran and a lawful permanent resident of the United States. She received her Ph.D. from an American public university in 2016. She is
1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 56 of 103
employed as an Assistant Professor at the same American public university where I am employed.
5. We have one daughter. She was born in June, 2017 and is a U.S. citizen. 6. My wife came to the United States in 2011 on an F-1 visa to get her Ph.D. She has not returned to Iran since 2011. 7. I met my wife in October 2012. In fall 2013, I became an employee at the university where she was studying. 8. We were married in June 2014, and my wife filed for change of status to permanent resident shortly afterwards and received her green card in March 2015. 9. In 2016, she filed for the removal of condition from her green card. The application is still pending. She plans to apply for U.S. citizenship as soon as she is eligible to do so. 10. After my wife and I got married, we went to the Interests Section of the Islamic Republic of Iran at the Embassy of Pakistan in Washington, D.C. so that she could record our marriage in her Persian documents with the government of Iran. 11. However, we were told that in order to formally record our marriage in Iran, I would be required to convert to Islam. 12. We refused. Because I was not willing to convert to Islam, Iran does not recognize our marriage. 13. My wife is considered a single woman under Iran's law, and our child is considered born out of wedlock. 14. Because of this, my wife does not feel safe returning to Iran. Even if she returned to Iran, she could not bring our baby or me with her, because our marriage is seen as illegitimate.
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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 57 of 103
15. Last year, my wife began attending church. On Easter, she was baptized at an Episcopal church and converted to Christianity. I was her witness at the ceremony.
16. If she discloses to the Iranian government that she has converted to Christianity, they can recognize her marriage to me, another Christian. However, she will be guilty of converting from Islam to Christianity, which will make it very dangerous for her to return to Iran.
17. My wife and I feel that there is no safe way for my wife and my daughter to visit Iran. Thus, the only feasible way for my wife to see her parents and my daughter to meet her grandparents is for them to visit the United States.
18. My parents-in-law have visited the United States once before, in 2015. 19. In fact, my parents-in-law frequently travel outside Iran, and have made many trips to Europe. They never have problems getting visas to travel because my mother-in-law has a good job, my father-in-law has a good retirement pension, and they own a lot of property in Iran. 20. The purpose of my parents-in-law's 2015 visit was to celebrate our marriage and attend their daughter's wedding ceremony. 21. My wife and I got married at the justice of the peace office in June 2014. We delayed having a formal wedding celebration because we wanted to be sure my parents-in-law would be able to attend. 22. For that trip, my parents-in-law had an interview in February 2015, and they received their tourist visas in May 2015. They arrived in June 2015, two weeks before our wedding and left 5 days after the wedding.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 58 of 103
23. My wife and I are hoping my parents-in-law can visit again to see us and meet their first and only grandchild, my daughter. We were originally hoping they would be able to be here for her birth.
24. We filed a DS-160 application in November 2016 so that my parents-in-law could visit the United States on a tourist visa. The first available visa appointment at the U.S. consulate in Dubai was in late April, 2017.
25. On January 27, 2017, we learned that President Trump signed an Executive Order (January 27 Executive Order) immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of Iranian citizens into the United States.
26. Because of the January 27 Executive Order, the U.S. consulate in Dubai canceled my parents-in-law's visa appointment.
27. My wife had an emotional meltdown, not knowing what would happen or whether she would be allowed to see her parents. I was also scared, hurt, and afraid of what could happen because I did not know whether I would be allowed to see my parents-in-law and be with my wife's family again. It was devastating to me, my wife, and my family, because my wife was 19 weeks pregnant and the stress could hurt her and harm the baby.
28. After the January 27 Executive Order was enjoined by the courts, the consulate rescheduled the appointment.
29. My parents-in-law had their visa interview at the U.S. consulate in Dubai in April 2017. They told the consular officer that they were hoping to be in the United States for the birth of their grandchild. The officer gave them a "purple slip" that, according to the officer, meant the administrative processing phase would take only two-to-ten weeks. Although she said she
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 59 of 103
couldn't promise anything, she told them that because she wrote in their file that they were hoping to be here for the birth of their grandchild, their application might be expedited.
30. Since then, my parents-in-law have not received any updates about the status of their visa application.
31. When my daughter was born in June 2017, my parents-in-law were unable to be there for the birth because they had not received their visas.
32. It has been really hard not having my parents-in-law here since my daughter was born. Because neither my wife nor I had been employed by our current employer for a full year before my daughter's birth, neither of us were eligible for parental leave. If my parents-in-law had been here, they could have helped us care for the baby after she was born.
33. None of my wife's other close relatives live in the United States. My parents both live and work in another state across the country. My mother was able to visit briefly, but we needed my wife's parents here to help her recover from the childbirth and take care of the newborn.
34. My parents-in-law Skype with my daughter every morning. We want them to be able to meet and hold her. She is their only grandchild.
35. I contacted the offices of the U.S. Senators from our state, as well as my congressional representative. I never heard back from the U.S. Senators. The representative's staff told me that they could not help with a visa application that is in administrative processing.
36. My wife has emailed the U.S. consulate in Dubai every month since April. She always receives the same automatic reply. The automatic reply informs us that the application is in administrative processing and that the embassy will contact us if they need any information. At first, her emails were very detailed; I used to edit all her emails to the embassy, so I have the
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 60 of 103
complete knowledge of the contents. No matter how detailed her emails, she never received a response from a human; only an automatic reply.
37. We have also called the U.S. consulate in Dubai. We were only able to reach a helpline that gave us the address of their website and how to email the consulate. We were not able to get any information about the status of the visa application.
II. Harm From September 24, 2017 Executive Order
38. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
39. I have checked the online status of my parents-in-law's visa application. As of the date that I signed this declaration, the status says, "administrative processing."
40. To date, we have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my parentsin-law' s visa application.
41. The Executive Order has caused me and my family great emotional distress and heartache.
42. My daughter is now four months old. She has not met her grandparents. Whenever my wife remembers the fact that her parents have not been allowed to meet or hold our daughter, she feels completely heartbroken, and I feel completely helpless. I feel that there is nothing I can do to ease her pain, which is heartbreaking for me.
43. I feel discriminated against. I feel like my family has fewer rights than other families My daughter is a U.S. citizen and should have the right to see her grandparents. I am a U.S. citizen and should have the right to marry whomever I want, regardless of their country of origin, and have a normal life, with all the rights other American families have.
6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 61 of 103
44. I feel hurt and betrayed. My wife loves the United States. She always attends my family's elaborate 4th-of-July celebration in Massachusetts and proudly sings the national anthem as we raise the American flag in celebration of Independence Day. This country gave my wife her education, her husband, and her daughter. This country offers security and freedom for our child. I was born in the United States; my ancestors came to this country on the Mayflower. I can't believe that the country that I love would keep my wife and I from her parents and prevent my daughter from meeting her grandparents. I can't believe that my country would unfairly cause my family so much distress and pain.
45. Going back to Iran is not viable for my family. It is not safe for my wife, or me, or my child. Consequently, if my parents-in-law cannot come to the United States, it may not be possible for my wife to see them. This is emotionally devastating for my entire family.
46. I feel like my wife, and by extension our family, is being profiled. The Government assumes that because my wife is from Iran, she is a Muslim terrorist, and that because I married a woman born in Iran, I should undergo hardship and distress. It feels like the Government is punishing my family because of its assumptions. They are wrong. We are Christians, and we are not dangerous.
47. My wife and I are good people. We are educators, teaching children in college. We have always abided by the law. My wife is respectful of all U.S. law and norms. She has never even had a speeding ticket. It feels like the only thing I've done wrong is to many a person born in the wrong country, and the only thing my wife did wrong was to be born in the wrong place. I feel like the government is victimizing me and my family because of something my wife had no control over.
7

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 62 of 103 48. Every time we think or talk about the Executive Order we become emotional. My
life has become difficult because sometimes my wife can't stop crying. This is severely affecting our family. Stress affects my wife's milk supply and is affecting my daughter's wellbeing. I am scared about what will happen to my wife, my family, and my in-laws in the future. I fear that my parents-in-law will never be able to visit us in the United States or meet my daughter.
49. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my parents-in-law for participating in this action.
8

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 63 of 103 I, John Doe, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 2 day of _October_, 2017, in United States of America_.
/s/ John Doe #10 John Doe #10
9

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 64 of 103
EXHIBIT 12

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 65 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JANE DOE #1 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #1, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background: 2. I am 29 years old and currently reside in San Diego, California. I am employed with the County of San Diego. I have my Master's Degree in city planning from San Diego State University. 3. I am a dual citizen of the United States and Iran. 4. I am a Muslim and adhere to the religion of Islam.

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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 66 of 103
5. My family sold all of their belongings and assets in Iran and immigrated to the United States in 2001. I was 11 years old at the time and moved with my mother, father, and sister.
6. It took approximately twelve (12) years for my family to be approved to become Green Card holders (legal permanent residents). My family has continued to live in the United States since 2001 and I, my mother, my father, and my sister are all United States citizens.
7. Both of my parents are small business owners in the United States. 8. In 2013, I met my fiancé in San Diego while he was visiting the United States on a tourist visa. He is 29 years old and has a Master's Degree in engineering from Sharif University of Technology in Tehran, Iran. 9. After traveling to Iran several times to visit my fiancé, we got engaged to be married in October of 2015. Thereafter, we immediately engaged the services of a Los Angeles, California immigration attorney in December of 2015 to assist us with the visa process for my fiancé's to move to the United States. 10. My fiance has a sister who lives in Boston, Massachusetts. His sister originally came to the United States on an F-1 visa and earned her PhD. She is currently working in Boston and has Optional Practical Training (OPT) work authorization. 11. I began to work on my fiancé's petition for a K-1 visa in December 2015. The petition for his K-1 visa was submitted in February 2016 and was approved in April 2016. The case was created in May 2016. 12. We did not include documentation about my fiancé's sister in his K-1 visa application. We included only the required information, which was documentation about my fiancé and about me.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 67 of 103
13. In October 2016, my fiancé and I traveled to Abu Dhabi for the immigrant visa interview. During the interview, the consular official asked my fiancé whether he had any family in the United States. My fiancé replied that he had one sister, and showed the consular official her photograph.
14. At the conclusion of the visa interview, the consular official told us, "congratulations! Your case has been approved."
15. The consular official then notified us that my fiancé's visa needed to undergo administrative processing, which he described as "routine." He advised that administrative processing could take up to six months.
16. Based on the consular official's verbal assurance, my fiancé and I both believed that his visa had been adjudicated and approved, and would be issued pending the routine completion of administrative processing.
17. 1 paid approximately $5,000.00 in travel expenses to Abu Dhabi for my fiancé's immigrant visa interview. I also paid approximately $3,500.00 in legal fees for his visa application.
18. I have personally checked the U.S. State Department website every day since October 2016 for status updates on my fiancé's visa.
II. Harm Caused by the January 27, 2017 Executive Order:
19. I learned that President Trump signed an Executive Order on January 27, 2017 (January 27 Executive Order) immediately prohibiting the issuance of visas to Iranian citizens, and preventing the entry of Iranian citizens into the United States.
20. After the January 27 Executive Order took effect, I received no guidance, information, clarity, instruction, or correspondence from the United States government or my
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 68 of 103
attorney concerning the issuance of visas and/or whether my fiancé's approved visa would be issued in course or whether it would not be issued under the terms of the January 27 Executive Order.
21. In the weeks that followed the issuance of the January 27 Executive Order, I checked various internet websites and blogs every day in an attempt to gather further information about the issuance of visas.
22. I called the U.S. Embassy in Abu Dhabi. However, they did not provide me with any information on my fiancé's visa.
23. I called U.S. Senator Kamala Harris in hopes that her staff could help move my fiancé's case along, or at least provide me with information on its status. However, her staff was unable to help me.
24. After the January 27 Executive Order, I was extremely anxious, stressed, unable to sleep and eat, and nervous because it was unclear whether I would be able to be reunited with my fiancé and get married.
III. Harm From March 6, 2017 Executive Order:
25. I understand that President Trump signed an Executive Order on March 6, 2017 (March 6 Executive Order) prohibiting the issuance of visas to Iranian citizens.
26. At that time, the online status of my fiancés visa application stated that the visa was in "administrative processing."
27. I reached out again to Senator Kamala Harris's office for her help. On March 10, 2017, the Senator's staff made an inquiry to the U.S. Embassy in Abu Dhabi on my behalf. Senator Kamala Harris's staff asked whether my fiancé could apply for any type of expedited
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 69 of 103
processing, or whether any other avenues were available to him. The Embassy said that no such options were available.
28. On March 12, the automated date stamp in the online system tracking my fiancé's visa application was updated. I believe that this indicated that someone reviewed my case on March 12th. However, its status remained in "administrative processing."
29. Senator Kamala Harris's office assured me that they would reach out again to the Embassy on my behalf in June 2017, ninety days after their first inquiry to the Embassy.
30. In order to be eligible to travel to the United States, my fiancé had to undergo a medical exam. His medical exam expired on April 21, 2017, while we waited for his visa to be issued. He will need to undergo a new medical exam in order to enter the United States.
31. Prior to the January 27 and March 6 Executive Orders, my fiancé and I had been planning an extravagant wedding ceremony in the United States that was scheduled for 2018.
32. I had spent hundreds of hours planning my wedding and I executed contracts and paid $2,500.00 as a down payment to secure a wedding venue.
33. In May 2017, an additional $2,500.00 down payment was due to our chosen wedding venue. By that time, seven months after his visa interview, my fiancé's visa was still stuck in "administrative processing." The wedding venue would not allow us to change the date of our wedding, so I was forced to forfeit the deposit I had made, as well as my reservation of the wedding venue.
34. I had to notify my friends and family that my wedding was cancelled. 35. I was extremely distraught about everything that was happening with my fiancé's visa process. I was not able to make any life plans while we both wait, in limbo, for his visa to be
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 70 of 103
issued. I did not know when, if ever, we would be able to be married. My fiancé and I were desperate to begin our life together.
36. I later learned that the March 6 Executive Order was enjoined by a federal court. My fiancé and I had been saving money, and we began the process of looking for a house that we could purchase in the United States. We hope to live in that house when he arrives here.
37. On June 26, 2017 I learned that, as a result of a decision by the United States Supreme Court, the March 6 Executive Order could be enforced against individuals who seek entry to the United States and who do not have a "bona fide relationship" with a person or entity in the United States
38. Early on June 29, 2017, I learned from news reports that the U.S. Department of State issued guidance that defined "close family" to exclude fiancés. I was beside myself with grief and didn't know what to do. Only later that day did I learn that the U.S. government had abruptly changed course and issued new guidance defining "close family" to include fiancés.
39. I received no guidance or clarity from the Embassy or any other government entity about the impact of the Supreme Court order or guidance on my fiancé's visa application.
40. I checked the online status of my fiancé's visa on the morning of June 29, 2017. The status said, "administrative processing."
IV. Harm From September 24, 2017 Executive Order
41. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
42. I have checked the online status of my fiancé's visa. As of the date that I signed this declaration, the status says, "administrative processing."
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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 71 of 103
43. To date, I have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my fiancé's visa application.
44. The Executive Orders and related guidance have caused me and my fiancé great pain.
45. I feel violated. During the seventeen years that I have lived in this country, I have always tried to be a law-abiding person. I have always followed all rules and policies and never done anything wrong, never gotten into trouble. I've always tried to be a helpful person, regardless of who I am helping.
46. It feels like the U.S. Government is profiling me. The Government assumes that, because my family is Persian, and from Iran, that we are Muslim, and so we must be dangerous. My fiancé and I are Muslim, but we are anything but dangerous.
47. In fact, I have worked for the city and state government in California for years. I have passed background checks and been fingerprinted a number of times. There is nothing suspicious or dangerous on my record.
48. The Government's actions make me feel that, despite my service and work in this country, I don't count for anything. They make me feel like I don't have a voice.
49. I am very scared about what will happen in the future. I have no faith that the government of Iran will cooperate with the United States to provide more information. And if that occurs, what will happen to people like me and my fiancé?
50. I fear that, due to the September 24 Executive Order, my fiance will be unable to receive his visa and immigrate to the United States, and that we will be unable to get married and
7

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 72 of 103 begin our life here. We opened escrow on our house in September 2017. I fear that our savings and plans to purchase a family home will come to nothing.
51. You only get one life in this world. I feel like mine is crashing down around me. 52. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my fiancé for participating in this action.
8

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 73 of 103 I, Jane Doe #1, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this 27 day of _September_, 2017, in _San Diego, California .
/s/ Jane Doe #1 Jane Doe #1
9

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 74 of 103
Exhibit to Declaration of Jane Doe #1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 75 of 103
From: Sent: e nes ay, eptem er , 17 : M To: Joanna Wasik Subject:
Hi Joanna, Screen shot of the CEAC website:
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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 76 of 103

U.S Department of State IMMIGRANT VISA APPLICATION
Administrative Processing

Immigrant Visa Case Number:

Case Created!

11-May-2016

Case Last Updated:

13-Aug-2017

Tour visa case is current]) undergoing necessary administrative processing. This processing can take several weeks. Please follow any instructions provided by the Consular Officer at the time of your interview. If further information is needed, you will be contacted. If your visa application is approved, it will be processed and mailed/available within two business days. Under the U.S. Immigration and Nationality Act, Immigrant Visas for 'Diversity Visas" cannot be issued after September 30th of the year in which you were selected to apply for a Diversity Visa. For example, entrants into the Diversity Visa Program in Fall of 2011 were selected for Diversity Visa 2012 Program, and selectees MUST apply and receive their visa prior to September 30, 2012 otherwise they lose eligibility to receive a Diversity Immigrant Visa, regardless of additional administrative processing. In addition, please note that some immigrant visas may not be able to be issued if the annual numerical limit for that category has been reached. For more information, please visit

Screenshot of Embassy's website:

Check your Immigrant case status
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Yost actlkation kr a U S immyrart owl Pll to:del:Owl roc.ltre lidroirististrre processiho. This peace:stir Q car report from tap vreths to scrotwal months. AS won as this processtru Is completed the Embassy codi peat a message to this wetratit odth further instructions Pinatas continue to check this e ebsrte on a regular basis fccr updates Th tee is no reed for ycu tr, write, email. call or tar the Embassy with !roue/Se-son the case as that ndl not speed FITXeSSir

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Thank you so much for your help,

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 77 of 103
EXHIBIT 13

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 78 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JANE DOE #4 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION] Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #4, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background:
2. I currently reside in San Francisco, California. I am employed full time with an architectural firm.
3. I am an Iranian citizen and was granted asylum in the United States in June 2016. I am currently in the process of obtaining my Green Card. I am a member of the Erfran-e-

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 79 of 103
Halgheh, also referred to as the Circle of Mysticism. I originally entered the United States with a student visa. I applied for asylum in the United States approximately three and a half years ago because I feared religious persecution in Iran. Members of my spiritual group have recently been killed by Iranian officials and I am unable to return to Iran.
4. I have lived in the United States since fleeing Iran in 2013. My parents still live in Iran and were planning to visit me this year, in 2017.
5. My parents applied for tourist visas at the U.S. Embassy in Istanbul, Turkey in November 2016. II. Harm Suffered Post January 27, 2017 Executive Order:
6. On January 27, 2017, President Trump issued an Executive Order (January 27 Executive Order) restricting the issuance of visas to Iranian citizens, and preventing Iranian immigrants and nonimmigrants from entering the United States.
7. I was instructed by my immigration attorney not to travel outside of the United States because of the January 27 Executive Order. I had been planning to travel this year to Amsterdam to visit some friends who are currently living in Europe. My friends will be returning to Iran later this year, and when that happens I will be unable to see then because I cannot return to Iran.
8. The Executive Order also put into jeopardy the plans of my parents to visit me in the United States.
III. Harm from March 6, 2017 Executive Order
9. I understand that President Donald Trump signed an Executive Order on March 6, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 80 of 103
10. The terms of the March 6 Executive Order prohibited the approval and issuance of my parents' tourist visas. I was concerned that if and when the March 6 Executive Order went into effect, my parents' tourist visas would be denied and they would be unable to travel to the United States.
11. My parents called the U.S. Embassy in Ankara but were not able to receive any information about their tourist visa. We also checked the status of their visa application online but there were no updates - - the visas remained in "administrative processing."
IV. Harm From September 24, 2017 Executive Order
12. I understand that President Trump issued an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
13. I checked the online status of my parents' visa. As of the date of this declaration, the status is "administrative processing."
14. I have not seen my parents since I left Iran in August 2013. 15. I do not have any family in the United States; all of my family is in Iran. I am close to my family and the physical separation is very emotionally and mentally difficult for me. I am unable to visit my parents in Iran because it is unsafe for me to return there. If and when the September 24 Executive Order is enforced, I will face indefinite separation from my parents and the rest of my family. 16. I feel like I am in prison. 17. I am extremely worried that I will not be able to see my parents. I constantly reconsider my decision to flee persecution in Iran and settle in the United States. At times, I am critical of the choice I have made. I have actually thought about going back to Iran and risking my life so that I can see my parents. The Executive Orders have forced me to re-
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 81 of 103 evaluate my priorities constantly; is it more important for me to be near my parents? Or is it more important for me to live in the United States and be physically safe?
18. I have been incredibly sad recently. 19. I am afraid that the State Department or other branches of the federal government will take retaliatory action against me for being a party to this action. I am especially concerned about retaliatory actions impacting my immigration status as I am still in the process for applying for my Green Card, and about retaliatory actions affecting my parents' visa application.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 82 of 103 I, Jane Doe #4, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this 2 day of October , 2017, in San Francisco, California .
/s/ Jane Doe #4 Jane Doe #4
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 83 of 103
Exhibit to Declaration of Jane Doe #4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 84 of 103
rkli mit”.**WrC " "twig Tway, - C .Nnkaraniv.net

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Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 85 of 103
EXHIBIT 14

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 86 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JANE DOE #13 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #13, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein.
I. Background:
2. I am an Iranian citizen and lawful permanent resident of the United States. My parents and sister are also Iranian citizens and live in Iran.
3. I am a Muslim. My parents and sister are also Muslim.

1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 87 of 103
4. I grew up in Iran and completed my undergraduate education there. I was a political activist during the Green Movement in Iran.
5. I first arrived in the United States in 2010 on an F-1 student visa in order to enroll in a graduate degree program. While working toward my graduate degree, I learned that the government of Iran had tried and convicted me in absentia on the basis of my previous political actions. As a result, I am unable to ever return to Iran.
6. I received asylum in the United States in December 2011. I am presently eligible to seek U.S. citizenship.
7. My parents have visited me in the United States twice in the past seven years. My mother and father both visited me in 2011, and my mother visited me in 2014 as well.
8. Each time my parents intended to visit the United States, I provided them with, among other things, documentation of my legal status as an asylee as well as a letter of invitation. They submitted these documents along with their visa application. My parents successfully applied for and received tourist visas from the U.S. Consulate in Dubai in 2011 and my mom successfully applied for and received a tourist visa from the U.S. Consulate in Dubai in 2014.
9. The officials at the U.S. Consulate in Dubai did not ask my parents any questions about my religion or their religion in either 2011 or 2014.
10. After I became engaged to be married to a U.S. citizen, my parents planned to come to the United States for my wedding. I greatly looked forward to seeing them and began making plans for my wedding ceremony. I expected that they would be able to obtain tourist visas as they had done in the past.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 88 of 103
11. My parents applied for a tourist visa. This time, I provided them with far more supporting documentation than I had provided for their visa applications in either 2011 or 2014. My fiancé's parents, who are U.S. citizens by birth and not of Iranian descent, provided my parents with letters of invitation, as did my fiancé. I provided them with a letter of invitation, documents showing my finances, and documents evidencing my legal status as an asylee and lawful permanent resident, among other things. My parents received an appointment date for their visa interview.
II. Harm Suffered Under January 27, 2017 Executive Order
12. I am aware that on January 27, 2017, President Trump signed an Executive Order (January 27 Executive Order) immediately restricting entry into the United States for citizens from certain countries, including Iran.
13. My parents received an email stating that their visa appointment had been cancelled. After a federal court preliminarily enjoined the January 27 Executive Order, my parents' appointment was rescheduled.
14. After the federal court's preliminary injunction of the January 27 Executive Order but before President Donald Trump signed a new Executive Order on March 6, 2017 (March 6 Executive Order), my parents traveled to Dubai for their appointment and interview.
15. In response to the questions of the consular officials, my parents said that they were traveling to visit me for my wedding, and that I was an asylee and lawful permanent resident of the United States.
16. My parents reported to me that the consular officials became visibly upset when they heard that I was an asylee. They then asked my parents if they intended to apply for asylum. My parents assured the consular officials that they did not intend to apply for asylum; that they
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 89 of 103
had successfully obtained tourist visas in the past; that they had returned to Iran each time after visiting me in 2011 and 2015; that they had every intention of returning to Iran after my wedding; that they were happy with their life in Iran; and that their other daughter, my sister, lived in Iran.
17. The consular officials stated that they did not understand how I had entered the United States and that I was not "in the system."
18. The consular officials then asked, "what is your daughter's religion'?" 19. My parents were surprised because they had never before been asked a question about religion during a tourist visa interview. They replied that I was a Muslim. 20. At the conclusion of the interview, my parents' application for a tourist visa was denied. The consular officials gave no basis for the denial. 21. My mother informed me that a couple who were in a substantially similar position— also applying for a tourist visa to a visit a relative and asylee in the United States — were approved for a tourist visa on the same day that my parents' tourist visa was denied. The other couple was being interviewed next to my parents. Their interview, like that of my parents, was conducted in Farsi and my mother was able to overhear the couple's responses to the interviewer's questions. My mother gleaned from their conversation that there was one significant difference between their application and hers: the other couple were Armenian Christians, while my parents are Muslim.
III. Harm from March 6, 2017 Executive Order
22. I am aware that President Donald Trump signed an Executive Order on March 6, 2017 prohibiting the issuance of visas to Iranian citizens.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 90 of 103
23. In the wake of the March 6 Executive Order, I lost hope that my parents would be able to reapply for a tourist visa to travel to the United States for my wedding. My fiancé and I were forced to postpone our wedding plans and contemplate significant changes to the ceremony.
IV. Harm from September 24, 2017 Executive Order
24. I am aware that President Donald Trump signed an Executive Order on September 26, 2017 prohibiting the issuance of visas to Iranian citizens (September 24 Executive Order).
25. If and when the September 24 Executive Order is enforced, my parents will be unable to re-apply for and receive a tourist visa.
26. It is not possible for me and my fiancé to get married in Iran because it is not safe for me to return to Iran. We are unable to host our wedding in the United States because my parents will be unable to attend. As a result of the March 6 and September 24 Executive Orders, my fiancé and I have been forced to reschedule our wedding and look for a wedding venue in Europe. This venue change will require both my family and my fiancé's family to travel abroad to be with us on our wedding day.
27. I am also very worried about the future. The thought that I will be unable to host my parents in my home in the future is crushing. My parents are getting older, and I would like to be able to live physically close to take care of them. Until now, I had hoped that they would be able to apply for immigrant visas and live with me in the United States. In the future, my parents will be too old to travel to a third country, in Europe or elsewhere, to meet me.
28. Based on the way that the iterations of the travel ban have evolved, I feel like it is a policy that has been developed to intentionally target Iranians and individuals of other nationalities. Over the past months, I have begun to wonder whether I will ever be allowed to feel at home in the United States.
5

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 91 of 103 29. If I am forced to choose between living close to my parents and living in the
United States, I may well choose to leave the United States. I am starting to think that, if it means indefinite separation from my family, living in the United States is just not worth it.
30. I fear that the U.S. government will retaliate against me and my family because of my involvement in this lawsuit. I am especially concerned that my involvement will impact any future visa applications by my family or my imminent naturalization proceedings.
6

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 92 of 103 I, Jane Doe #13, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this 3 day of October , 2017, in Washington, District of Columbia
/s/ Jane Doe #13 Jane Doe #13
7

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 93 of 103
EXHIBIT 15

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 94 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Pars Equality Center, Iranian American Bar Association, Public Affairs Alliance of Iranian Americans, Inc. et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JANE DOE #14 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #14, hereby declare and state as follows: 1. I am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. I. Background: 2. 1 am 34 years old and currently reside in New York City. I play the viola professionally as a classical musician, and I am working on my Ph.D. in performing arts at Stoney Brook University. 3. I am a United States citizen and a citizen of Iran. 4. I am a Muslim, although I am non-practicing. 5. I came to the United States in 2011 and became a citizen in April 2016.
1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 95 of 103
6. I am married. My husband is an Iranian citizen and a lawful permanent resident of the United States.
7. I am pregnant with our first child. The baby is due in November 2017. 8. My mother lives in Iran. She is applying for an immigrant visa to move to the United States. 9. I first submitted the petition for her visa in November 2016. 10. In late May or early June 2017, I sent a letter to the U.S. embassy in Abu Dhabi advising them that I was pregnant and requesting that they expedite the date of her interview. 11. On August 28, 2017, my mother had her immigrant visa interview at the U.S. embassy in Abu Dhabi. 12. After the interview, we were advised that the visa needed to undergo administrative processing. I have heard that administrative processing can take several months. 13. I have personally checked the U.S. State Department website for status updates on my mother's visa.
II. Harm From September 24, 2017 Executive Order
14. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens.
15. I have checked the online status of my mother's immigrant visa. As of the date that I signed this declaration, the status says, "administrative processing."
16. To date, I have received no guidance or clarity from the Embassy or any other government entity about the impact of the September 24, 2017 Executive Order on my mother's visa application.
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 96 of 103
17. The announcement about the Executive Order has caused me terrible emotional distress.
18. When I found out about the Executive Order, I was so, so depressed. I don't know what to do. I am going to have a baby in a few months, and I need my mother.
19. My husband works full time and has to be at work every day. He won't be able to stay home with me and the new baby. None of my other close relatives live in the United States, and I don't have any other family close by that can help with the newborn.
20. I need my mother here so she can support me and help me care for the baby. 21. Before learning about the Executive Order, I was so hopeful that my mother would be able to come to the U.S. and meet her grandchild. I want my mother to see the life I've built here with my husband. Now I'm afraid that won't be able to happen. 22. This feels like the most horrible thing that could happen to a person. I can't believe the Government is saying I don't have the right to be with my family. Even though I am a United States citizen, it feels like I don't have any rights at all. 23. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the State Department, USCIS, the NCV, and/or the government agencies listed as Defendants will take retaliatory action against me or my mother for participating in this action.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 97 of 103 I, Jane Doe #14, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this 2 day of October , 2017, in _New York, New York.
/s/ Jane Doe #14 Jane Doe #14
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 98 of 103
EXHIBIT 16

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 99 of 103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Pars Equality Center,

)

Iranian American Bar Association,

)

Public Affairs Alliance of Iranian Americans, )

Inc.

et al,

Plaintiffs,

v.

Civil Action No. 17-cv-255

Donald J. Trump, President of the United States, et al.

Defendants.

DECLARATION OF JANE DOE #15 IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Pursuant to Title 28 U.S.C. Section 1746, I, Jane Doe #15, hereby declare and state as follows: 1. 1 am over the age of eighteen years, and I have personal knowledge of the facts set forth herein or believe them to be true based on my experience or upon information provided to me by others. If asked to do so, I could testify truthfully about the matters contained herein. 1. Background: 2. 1 was born in Iran. I am a dual citizen of Iran and the United States. 3. I received a bachelor's degree and a Master's degree from the best university in Iran. I received another Master's degree from an institution in Europe. At each university which I attended, I have been one of only a few individuals admitted to my program of study. 4. I first came to the United States in 2009. When I completed my second Master's degree in 2012, I moved to the United States to live here with my husband.
1

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 100 of 103
5. I work in the biotech field. I hold a top position in an elite company. 6. My job is very fast-paced. Although I receive vacation time, I am rarely able to take vacation because my job is so demanding. 7. Since moving to the United States, I have traveled to Iran to visit my parents approximately every 1.5 years. It is not easy for me to do so I save up most of my vacation time and, as a result, end up not taking many vacations with my husband. Iran is far away and it is not worthwhile to visit for only a short period of time, such as one week. I have seen my parents for approximately three months total over the past seven years; this is not enough time. 8. My parents are ageing. My father is over seventy years old and my mother is in her sixties. My greatest fear is that one day I will receive a phone call saying that something has happened to them, and I will not be by their side. 9. In 2015, I became a U.S. citizen. I was tremendously excited on that day. 10. I knew that, because I was a U.S. citizen, I could now submit a petition for an immigrant visa on behalf of my parents. I was ecstatic at the thought. I applied for an immigrant visa, which would allow my parents to receive a green card, in May 2016. 11. My husband and I shortened our lease to move out of our one-bedroom apartment and into a two-bedroom apartment in anticipation of my parents' arrival. 12. Then the January 27, 2017 and March 6, 2017 Executive Orders were signed. I was devastated because I knew it meant that my parents would not be coming to the United States. 13. After the March 6 Executive Order was enjoined by a federal court, my parents' visa appointment was scheduled. They completed their visa interview in August 2017 at a U.S. Embassy in a Middle Eastern country. I started again to get excited for their arrival. I thought of
2

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 101 of 103
all of the food I would serve them when they came, and which bottles of wine we would open to celebrate. I began to plan which restaurants I would take them to.
II. Harm From September 24, 2017 Executive Order
14. I understand that President Trump signed an Executive Order on September 24, 2017 (September 24 Executive Order) prohibiting the issuance of visas to Iranian citizens. I understand that, if and when it is enforced, the September 24 Executive Order would block issuance of my parents' immigrant visas.
15. I haven't seen my parents for over a year. 1 have been planning for them to come live with me in the United States for much longer than that.
16. The January 27, March 6, and September 24 Executive Orders have made me completely depressed. Each time my husband and I get ready for my parents to come here, another hurdle is thrown in our way. When someone at work asks me where my "home" is, I feel completely confused. Even though I am a U.S. citizen, that fact makes no difference. I'm not sure which country is mine. It feels like no one wants me here.
17. I've started going to therapy to deal with anxiety stemming from the separation from my parents as well as the wholly unpredictable nature of the Executive Orders. It seems that something new happens every two to three months. My husband and I shortened our lease so that we could move to a two-bedroom apartment when my parents arrived. However, when the January 27, March 6, and now September 24 Executive Orders were signed, we again extended our original lease on our one-bedroom apartment. Each time we extend the lease, we end up paying a higher rent due to market increases. Out of self-preservation, I've had to tell myself not to get excited for my parents' arrival, not to make any plans for it, and to just let it go.
3

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 102 of 103 18. I've started to look for jobs in other countries. However, my husband has to stay
in the United States for his job. My husband and I are seriously considering living separately he in the United States and me in another country so that I am able to see my parents on a regular basis. My husband has been incredibly supportive of me throughout this process, but I worry about the strain on our marriage that any separation from him could cause.
19. I have joined this lawsuit as an anonymous Plaintiff because I am afraid that the government agencies listed as Defendants will take retaliatory action against me or my parents for participating in this action.
4

Case 1:17-cv-00255-TSC Document 107-3 Filed 10/12/17 Page 103 of 103 I, Jane Doe #15, declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge. Executed this 2 day of October , 2017, in _San Francisco, California_.
/s/ Jane Doe #15 Jane Doe #15
5

 
 Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 1 of 79

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER 1635 The Alameda San Jose, CA 95126
IRANIAN AMERICAN BAR ASSOCIATION 5185 MacArthur Boulevard NW, Suite 624 Washington, DC 20016
PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., 5335 Wisconsin Ave. NW, Suite 440 Washington, DC 20015
SHIVA HISSONG 401 West 1st Ave., Apt. #1, Spokane, WA 99201
MONTRA YAZDANI 737 Bluemont Ave. Alexandria, VA 22301
SEPIDEH GHAJAR 1941 California Street, Apt. 11 Mountain View, CA 94040
MOHAMMAD JAHANFAR 19523 Friar Street Tarzana, CA 91335
MOHAMMAD REZA SHAERI 2150 Swarr Run Rd. Lancaster, PA 17601
REZA ZOGHI
JOHN DOE #1, JOHN DOE #9, JOHN DOE #10, JANE DOE #1, JANE DOE #4, JANE DOE #8,

Case No. 17-cv-255 (TSC)
Hon. Tanya S. Chutkan
THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 2 of 79
JANE DOE #9, JANE DOE #13, JANE DOE #14, and JANE DOE #15,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Ave. NW Washington, DC 20500
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Ave. NW Washington, DC 20016
U.S. CUSTOMS AND BORDER PROTECTION 1300 Pennsylvania Ave. NW Washington, DC 20004
U.S. DEPARTMENT OF STATE 2201 C Street, NW Washington, DC 20520
U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW Washington, DC 20530
ELAINE DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security 3801 Nebraska Ave. NW Washington, DC 20016
KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner of Customs and Border Protection 1300 Pennsylvania Ave. NW Washington, DC 20004
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street, NW Washington, DC 20520

Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 3 of 79
JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States 950 Pennsylvania Ave. NW Washington, DC 20530 and DANIEL R. COATS, in his official capacity as Director of National Intelligence Office of the Director of National Intelligence Washington, DC 20511 Defendants.
THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION 1. Plaintiffs—individual Iranian nationals and three Iranian-American organizations—challenge President Donald J. Trump’s September 24, 2017 Proclamation, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States By Terrorists or other Public-Safety Threats” (“September 24 Proclamation”), as well as President Trump’s October 24, 2017 Executive Order, “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities” (“October 24 Executive Order”), and the October 23, 2017 Memorandum to the President implementing the October 24 Executive Order (“October 23 Memorandum”) (collectively “October Refugee Ban”). These actions represent the President’s third attempt to unlawfully ban Muslims and Iranians from the United States. The September 24 Proclamation indefinitely bars nationals of six Muslim-majority countries—including Iran—from obtaining immigrant visas. It also indefinitely bars Iranians from all non-immigrant visas with the exception of student visas. The October Refugee Ban shut

Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 4 of 79
down refugee applications and admissions from nine Muslim-majority countries—including Iran—for a period of 90 days by withdrawing all resources, including field personnel, from those countries. This lawsuit seeks to protect and defend the Iranian-American community in the United States and abroad from the harmful and discriminatory effects of September 24 Proclamation, the October Refugee Ban, and Defendants’ implementation of these directives. The individual Plaintiffs’ stories bring to life the extraordinary harm the September 24 Proclamation and October Refugee Ban—and the continuing policy of discriminatory exclusion—have inflicted on this community since the President signed the unlawful Executive Orders on January 27, 2017, and March 6, 2017, that gave rise to these actions.
2. The United States has a long history of welcoming Iranians who, like so many others from around the world, hope to share in the promise and opportunity that this nation embodies. Many as dissidents or members of religious communities sought shelter in the United States. Many others have come here on student, work, and other visas, or as permanent residents through normal channels. For decades, this country has made a commitment to Iranian immigrants and their families to allow them to live free from fear and political repression and allow them to contribute to American society. These immigrants and visitors have flourished on American soil and contributed immensely to our society: Iranian Americans today include doctors, mathematicians, diplomats, artists, scientists, lawyers, journalists, athletes, professors, and entrepreneurs. They exemplify the vitality of this nation of immigrants, a nation bound together not by a common ethnicity or religion, but by the democratic principle of equality before law.
3. On January 27, 2017, President Donald J. Trump betrayed this principle with the stroke of a pen. His sweeping Executive Order No. 13,769, also entitled “Protecting the Nation
2

Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 5 of 79
from Foreign Terrorist Entry into the United States” (“January 27 Executive Order”), and its chaotic and unsparing implementation by the departments and agencies charged with administering the immigration laws, upended the lives of thousands of members of the IranianAmerican community, separating families, jeopardizing careers, and disrupting, even imperiling, lives. In implementing the January 27 Executive Order, Defendant agencies far exceeded the already indiscriminate direct mandate of the Order in, among other things, revoking tens of thousands of visas, suspending visa processing, canceling consular interviews for thousands of applicants, and suspending refugee application processing and screening for individuals from the listed countries. Multiple courts promptly enjoined the January 27 Executive Order.
4. On March 6, 2017, the President issued a revised Executive Order (“March 6 Executive Order”). Like the January 27 Order, the March 6 Executive Order upended the lives of thousands of members of the Iranian-American community, separating families, jeopardizing careers, and disrupting, even imperiling lives. Multiple courts promptly enjoined the March 6 Executive Order. Notwithstanding these injunctions, the Defendant agencies continued to discriminate against individuals from the listed countries by, among other things, delaying visa and refugee processing for prolonged periods of time and denying visas and refugee admissions for discriminatory reasons.
5. On June 26, 2017, the Supreme Court affirmed the injunctions insofar as they barred issuance of visas to individuals with a “credible claim of a bona fide relationship with a person or entity in the United States.” With respect to the portions of the March 6 Executive Order that the Supreme Court allowed to go into effect, the Defendant agencies implemented aspects of the March 6 Executive Order in a discriminatory fashion.
3

Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 6 of 79
6. Notwithstanding these injunctions, the organizational Plaintiffs’ constituents and individual Plaintiffs continued to suffer harm—visas that had been requested before January 27 (or after the injunctions were in place) were delayed for prolonged periods of time or not issued, visas were arbitrarily denied to individuals who had been previously admitted, and refugee applications remain in limbo.
7. The September 24 Proclamation and the October Refugee Ban continue the most discriminatory aspects of the prior two Executive Orders.
8. In particular, the September 24 Proclamation enacts the following discriminatory policies:
a. It categorically bars Iranians and individuals from the other listed countries from obtaining immigrant visas. Among other things, this means that Iranian spouses of U.S. citizens, fiancés of U.S. citizens, family members of U.S. citizens or lawful permanent residents, and Iranian orphans seeking to be adopted by U.S. citizens will not be able to obtain visas to emigrate to the United States. This also means that Iranians will also no longer be eligible for the diversity immigrant visa lottery or for employer sponsored immigration. b. The September 24 Proclamation categorically bars Iranians and individuals from other listed countries from most types of nonimmigrant visas. Among other things, Iranians are no longer eligible for business or work visas. Iranians are no longer eligible to obtain visas to visit family members in the United States. Iranians currently in the United States on work visas will not be permitted to renew these visas c. The September 24 Proclamation states that Iranians and individuals from the other listed countries who otherwise meet the criteria for a visa shall not be issued a visa, but
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permits consular officers and other officials to grant waivers if the individual demonstrates that (i) the denial of a waiver would impose undue hardship, (ii) that their admission to the United States poses no national security or public safety risk, and (iii) that their admission to the United States is in the “national interest.” In contrast to the visa program, the waiver program has no standards or procedures to allow for reasoned adjudication of waiver requests or review; in short, it is a separate and inherently unequal alternative to the visa system. Given the standards, it is difficult to envision how an individual would be able to establish they meet these criteria. d. Unlike the January 27 and March 6 Executive Orders, the September 24 Proclamation is indefinite in duration. Iranians have no prospect of ever being able to obtain immigrant or most types of nonimmigrant visas. e. The September 24 Proclamation covers nationals of five of the six countries listed in the March 6 Executive Order (Iran, Libya, Syria, Yemen, and Somalia) and adds a sixth Muslim-majority country (Chad). In an effort to obscure the anti-Muslim animus that motivated the September 24 Proclamation, the President added North Korea (whose citizens apply for virtually no visas to travel to the United States) and adds restrictions on a small group of Venezuelan government officials and their families. The addition of these countries does not alter the fact that well in excess of 99% of the individuals barred under the September 24 Proclamation are from Muslim-majority countries. 9. Similarly, the October Refugee Ban enacts the following discriminatory policies: a. It imposes a new ban on refugees that will remain in effect for at least 90 additional days for refugees from 11 particular countries.
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b. Nine of the 11 countries targeted in the October Refugee Ban are Muslim-majority: five of the Muslim-majority countries identified in the various iterations of the travel ban (Iran, Libya, Somalia, Syria, Yemen) plus Egypt, Mali, Iraq, and Sudan. c. The October Refugee Ban “prioritize[s] refugee applications” from other countries (i.e., other than the 11 countries) and “reallocate[s] . . . resources” that would otherwise be “dedicated to processing nationals” of the 11 countries “to process applicants” from other countries. 10. The September 24 Proclamation violates the anti-discrimination provision of the Immigration and Nationality Act of 1965 (INA), 8 U.S.C. § 1152(a). That statute 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.” On its face, the September 24 Proclamation discriminates against Iranians (and the other listed countries) in the issuance of visas based on their nationality, place of birth, and/or place of residence. The Immigration and Nationality Act of 1965 was expressly designed to eliminate this country’s shameful history of discriminatory, nationality-based exclusions; the September 24 Proclamation seeks an end run around this prohibition. And this discrimination in visa issuance must be considered against a long and shameful series of statements by the President and senior advisors that (i) they intended to discriminate, and (ii) when they were told such overt discrimination was illegal, they developed pretextual rationales for the Executive Actions to conceal their discriminatory animus. 11. Likewise, the October Refugee Ban violates the anti-discrimination provision of the Refugee Act of 1980, 8 U.S.C. § 1522(a)(5). The statute provides that refugee programs “shall be provided to refugees without regard to race, religion, nationality, sex, or political
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opinion.” On its face, the October Refugee Ban discriminates against Iranians (and nationals of the other listed countries) based on their nationality. The Refugee Act was intended to bring U.S. law more fully into compliance with the Refugee Protocol of 1967, to which the United States is a signatory. See INS v. Cardoza-Fonseca, 480 U.S. 421,436 (1987) (“[It is] clear from the legislative history . . . that one of Congress’ primary purposes [in enacting the Refugee Act] was to bring United States refugee law into conformance with the [Protocol].”); H.R. Rep. No. 96-608, at 18 (1979) (expressing Congress’s intent “that U.S. statutory law clearly reflects our legal obligations under international agreements.”). Article 3 of the Protocol provides: “The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.”
12. The September 24 Proclamation and October Refugee Ban also discriminate on the basis of religion and national origin by barring Iranians with bona fide relationships with persons or entities in the United States from receiving visas to enter the United States.
13. Under the relevant legal standards, this Court must consider the September 24 Proclamation and the October Refugee Ban in light of the history of religious and ethnic bigotry that preceded their issuance. That history makes clear that the September 24 Proclamation and October Refugee Ban do not cure the constitutional or legal infirmity of the prior executive orders. Indeed, turning a temporary ban into an indefinite ban of immigrant and most nonimmigrant visas magnifies the constitutional and legal harm of the September 24 Proclamation. And Plaintiffs reasonably believe that the October Refugee Ban banning refugees from Muslimmajority countries could be extended indefinitely, just as the visa ban was.
14. The devastating effects of the January 27 Executive Order, the March 6 Executive Order, the September 24 Proclamation, and the October Refugee Ban (collectively, “the Executive
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Actions”) reflect invidious discrimination that President Trump and his advisors have scarcely bothered and utterly failed to conceal. President Trump has effectively accused every Iranian citizen, religious or secular, Muslim or non-Muslim, of belonging to so-called “radical Islam” and of harboring terrorist ambitions against the United States. This stereotyping is baseless. From 1975 to 2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran.
15. Excluding Iranians from the United States in furtherance of an anti-Muslim agenda, as the Executive Actions do, not only defies rationality; it also repudiates well-established law. As noted above, the INA and Refugee Act prohibit national-origin discrimination. The U.S. Constitution and various other statutes prohibit the government from officially favoring or disfavoring a religion, and from discriminating on the basis of religion or national origin. The U.S. Constitution also forbids the government from depriving individuals of protected rights without due process of law. The September 24 Proclamation and October Refugee Ban direct the government to proceed without consideration to these prohibitions.
16. It is difficult to overstate the harm that this unlawful usurpation inflicts on countless Iranian Americans and Iranian nationals, both within U.S. borders and beyond. The Executive Actions impermissibly shunt aside the statutes and regulations that govern the U.S. immigration system. And they extinguish the rights of many thousands of families, bypassing well-established constitutional limitations. The September 24 Proclamation and October Refugee Ban do not redress the core harms that the January 27 or March 6 Executive Orders caused to Plaintiffs, and require that the U.S. government continue to discriminate against them. The harm to Plaintiffs from this invidious and discrimination is certain, imminent, and irreparable. Plaintiffs seek declaratory and injunctive relief against its enforcement and implementation.
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JURISDICTION AND VENUE 17. The Court has jurisdiction under 28 U.S.C. § 1331. 18. The Court may award declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the Administrative Procedure Act, 5 U.S.C. § 706. 19. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1) because Defendants are United States agencies or officers sued in their official capacities; a substantial part of the events or omissions giving rise to this claim occurred in this district; and multiple Plaintiffs reside in this district.
PARTIES A. Plaintiffs 20. Plaintiff Pars Equality Center (“Pars”) is a nonprofit organization dedicated to helping all members of the Iranian-American community to help realize their full potential as informed, self-reliant, and responsible members of American society. Pars believes that learning and teaching the rights and responsibilities of citizenship in a democracy as well as the rules and rewards of entrepreneurship are necessary ingredients for success, and achieves its mission primarily by providing extensive social and legal services. The organization’s Persian-speaking staff advocates for families and individuals in need with a strong focus on refugees, asylees, and those newcomers to the United States living in poverty. Pars is headquartered in Menlo Park, California and has centers located in San Jose, Los Angeles, and Orange County. 21. Plaintiff Iranian American Bar Association (“IABA”) is an independent, apolitical 501(c)(6) nonprofit professional association of attorneys, judges and law students. It seeks to educate the Iranian-American community in the United States about legal issues of interest, advance legal rights of the community, and ensure that government officials and the public at large are fully and accurately informed on legal matters of concern to the Iranian-American
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community. IABA also seeks to foster and promote the achievements of Iranian-American lawyers and other legal professionals. IABA has over 1500 members and chapters in the District of Columbia, Dallas, Los Angeles, New York, Northern California, Orange County, Phoenix, and San Diego.
22. Plaintiff Public Affairs Alliance of Iranian Americans, Inc. (“PAAIA”) is a nonprofit, nonpartisan organization based in Washington, DC that includes 501(c)(3) and (c)(4) components. PAAIA, Inc. is a 501(c)(4) bipartisan, non-sectarian, national membership organization with an affiliated 501(c)(3), IA-100, Inc. PAAIA serves the interests of Iranian Americans and represents the Iranian-American community before U.S. policymakers and the American public at large. PAAIA works to foster greater understanding between the people of Iran and the United States, expand opportunities for the active participation of Iranian Americans in the democratic process at all levels of government and in the public debate, and provide opportunities for advancement for the next generation of Iranian Americans.
23. The three organizational Plaintiffs are among the largest and most prominent Iranian-American organizations in the United States. The Executive Actions have profoundly harmed and undermined the missions of these organizations. They have diverted enormous resources to mitigate the adverse consequences of the Executive Actions on the Iranian-American community. They stand for the broader Iranian-American community, which has been profoundly harmed by the Executive Actions. By disrupting family ties and business opportunities, and closing the door on those fleeing the oppressive Iranian regime, the Executive Actions take direct aim at the ways that Iranian Americans contribute to U.S. civic society.
24. Plaintiff Shiva Hissong is a citizen of Iran and a lawful permanent resident of the United States. She currently resides at 401 West 1st Avenue #1, Spokane, Washington, 99201.
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25. Plaintiff Montra Yazdani is a citizen of Iran and the United States. She currently resides at 737 Bluemont Avenue in Alexandria, Virginia.
26. Plaintiff Sepideh Ghajar is a citizen of Iran and Australia. She is a lawful permanent resident of the United States. She currently resides at 1941 California Street Apt 11, Mountain View, CA 94040.
27. Plaintiff Mohammad Jahanfar is a United States citizen of Iranian origin. He currently resides at 19523 Friar Street, Tarzana, CA 91335.
28. Plaintiff Mohammad Reza Shaeri is citizen of Iran and a lawful permanent resident of the United States. He currently resides at 2150 Swarr Run Rd. in Lancaster, PA.
29. Plaintiff Reza Zoghi is a citizen of Iran. He currently resides with his family in Turkey. They have had their refugee status determined by the Office of the U.N. High Commissioner for Refugees following its lengthy and thorough vetting process. They have a U.S. sponsor and formal assurances from Lutheran Immigration and Refugee Service, a resettlement agency. Mr. Zoghi hopes to resettle in the United States, and his application is pending with USRAP.
30. Plaintiff John Doe #1 is an Iranian citizen who entered the United States on an F-1 student visa. His visa expired in June 2017, and his wife’s F-2 visa expired in July 2017. He currently resides in New York City, New York.
31. Plaintiff John Doe #9 is a citizen of Iran. He currently resides in Arak, Iran. 32. Plaintiff John Doe #10 is a citizen of the United States. He currently resides in the United States. 33. Plaintiff Jane Doe #1 is a dual citizen of Iran and the United States. She currently resides in San Diego, California.
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34. Plaintiff Jane Doe #4 is an Iranian citizen who was granted asylum in the United States in 2016. She currently resides in San Francisco, California.
35. Plaintiff Jane Doe #8 is an Iranian citizen currently residing with her partner, Jane Doe #9, in southwest Turkey. They have had their refugee status determined by the Office of the U.N. High Commissioner for Refugees following its lengthy and thorough vetting process and have completed one interview with the International Catholic Migration Commission, a State Department contractor that interviews refugees who have been referred for possible resettlement to the United States. Jane Doe #8 hopes to resettle in the United States.
36. Plaintiff Jane Doe #9 is an Iranian citizen currently residing with her partner, Jane Doe #8, in southwest Turkey. They have had their refugee status determined by the Office of the U.N. High Commissioner for Refugees following its lengthy and thorough vetting process and have completed one interview with the International Catholic Migration Commission, a State Department contractor that interviews refugees who have been referred for possible resettlement to the United States. Jane Doe #9 hopes to resettle in the United States.
37. Plaintiff Jane Doe #13 is an Iranian citizen and lawful permanent resident of the United States who was granted asylum in the United States in 2011. She currently resides in Washington, DC.
38. Plaintiff Jane Doe #14 is a citizen of Iran and the United States. She currently resides in New York, NY.
39. Plaintiff Jane Doe #15 is a citizen of Iran and the United States. She currently resides in the United States.
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B. Defendants 40. Defendant Donald J. Trump is the President of the United States and sued in his official capacity. President Trump issued or approved the Executive Actions that are the subject of this action. 41. Defendant Department of Homeland Security (“DHS”) is an executive department of the United States Government. DHS is headquartered in Washington, DC. 42. Defendant U.S. Customs and Border Patrol (“CBP”) is an administrative agency within DHS. CBP is headquartered in Washington, DC. 43. Defendant Department of State is an executive department of the United States government. The State Department is headquartered in Washington, DC. The State Department is responsible for issuing visas and implementing the Executive Actions. 44. Defendant Department of Justice (“DOJ”) is an executive department of the United States. DOJ is headquartered in Washington, DC. 45. Defendant Elaine Duke is Acting Secretary of Homeland Security and sued in her official capacity. Secretary Duke is responsible for DHS’s administration of the Immigration and Nationality Act. 46. Defendant Kevin McAleenan is the Acting Commissioner of Customs and Border Protection. Acting Commissioner McAleenan is directly responsible for CBP’s implementation of the Immigration and Nationality Act. 47. Defendant Rex W. Tillerson is the Secretary of State and sued in his official capacity. Secretary Tillerson oversees the State Department’s activities with respect to the Immigration and Nationality Act.
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48. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and sued in his official capacity. Defendant Sessions oversees the DOJ’s activities with respect to the Immigration and Nationality Act.
49. Defendant Daniel R. Coats is the Director of National Intelligence and sued in his official capacity.
STATEMENT OF FACTS A. The Iranian-American Community in the United States 50. There are approximately one million Iranian Americans in the United States. The Iranian-American community is, on the whole, a deeply-rooted, well-integrated, high-achieving, and thriving population within the United States. This community includes United States citizens; dual citizens of Iran and the United States; lawful permanent residents; holders of various types of student, work, and other visas; applicants for such visas; asylum grantees and applicants; refugees; and temporary protected status holders and applicants. 51. Defendants’ enforcement of the policies set forth in the Executive Actions has caused, and will continue to cause, great harm to the Iranian-American community. 52. Many Iranian immigrants within the last fifty years identify as refugees fleeing political oppression in Iran. While the first wave of Iranian immigration to the United States occurred in the 1950s, most Iranian Americans arrived in the United States during the second wave of migration from 1979 to 2001 and were more likely to identify themselves as exiles or political refugees. Iranians have continued to immigrate to the United States in recent years. 53. Iranians arriving in the United States quickly assimilated into and thrived in American culture. In 2011, about 50% of all working Iranian Americans were in professional and managerial occupations, greater than any other group at the time. In 2015, the median household
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income for Iranian-American families was $68,260, over 20% higher than the median household income for all American families in 2015.
54. The Iranian-American community values education. According to 2015 statistics published by the United States Census Bureau, 87% of Iranian Americans over age 25 have graduated from high school, almost 30% have obtained a bachelor’s degree, and over 30% hold a graduate or other professional degree.
55. As individuals and as a community, Iranian Americans have actively participated in and enriched all levels of American culture and society. Iranian Americans have made important contributions to the public sector, technology, business, and the arts. To provide just a handful of examples, an Iranian American, Pierre Omidyar, founded eBay; an Iranian American, Farzad Nazem, also known as Zod Nazem, was Yahoo!’s chief technology officer and one of its longest-serving executives; an Iranian American, Salar Kamangar, is a senior executive at Google and former CEO of Google’s YouTube brand; and an Iranian American, Omid Kordestani, is the Executive Chairman of Twitter. They and many other Iranian-American business owners and entrepreneurs are making important contributions to job creation and the national economy. Cyrus Amir-Mokri served as the Assistant Secretary for Financial Institutions at the United States Treasury; Faryar Shirzad served on the staff of the National Security Council; Goli Ameri was Assistant Secretary of State for the Bureau of Educational and Cultural Affairs under the George W. Bush administration; and Azita Raji, was nominated by President Obama to serve as United States Ambassador to Sweden. Firouz Naderi is the former director of NASA’s Jet Propulsion Laboratory. Shohreh Aghdashloo is an award-winning Iranian-American actress. Nasser Ovisi is an internationally acclaimed artist. Christiane Amanpour, CBE, is the Chief International Correspondent for CNN.
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56. While assimilating into American society, Iranian Americans maintain close ties to their family in Iran: According to 2017 survey data, 88% of respondents have family in Iran and more than half are in contact with their family or friends in Iran at least several times per month. One quarter of respondents traveled to Iran once every two or three years. Public opinion of the United States is higher in Iran than in any other country in the Middle East (other than Israel). See C. Thornton, The Iran We Don’t See: A Tour of the Country Where People Love Americans, The Atlantic (June 6, 2012).
B. Trump’s Campaign Pledge to Ban Muslims from the United States 57. On December 7, 2015, in the wake of the terrorist attack in San Bernardino, California, Mr. Trump’s presidential campaign issued a written statement that “Donald J. Trump calls for a total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is going on.” Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015. 58. This proposed “Muslim ban” became a signature promise of the Trump campaign. On the campaign trail, Mr. Trump and his top advisors and surrogates repeated his call for such a ban time and again. Mr. Trump read or paraphrased the December 7, 2015 statement at numerous campaign appearances. 59. On December 28, 2015, during a televised interview, Mr. Trump explained how his proposed Muslim ban would work at the border: Host: The customs agent would . . . ask the person his or her religion? Trump: That would be probably — They would say, “Are you Muslim?” Host: And if they said, “Yes,” they would not be allowed in the country? Trump: That’s correct. Morning Joe, MSNBC (December 28, 2015).
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60. In a television ad released by the Trump campaign on January 4, 2016, the narrator says that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States until we can figure out what’s going on.” Press Release, “Donald J. Trump Unveils First Campaign Television Ad with Significant Buy in Early States” (Jan. 4, 2016). During a January 14, 2016 televised debate, when asked whether he had rethought his “comments about banning Muslims from entering the country,” Mr. Trump responded, “No. Look, we have to stop with political correctness.” Republican Candidates’ Debate in North Charleston, S.C. (Jan. 14, 2016). On March 9, 2016, Mr. Trump said in a televised interview, “I think Islam hates us.” Anderson Cooper, 360 Degrees (Mar. 9, 2016).
61. Amid widespread objection that a Muslim ban would be un-American and unconstitutional, Mr. Trump and his advisors and surrogates shifted their rhetoric. On June 13, 2016, after a terror attack in Orlando, Florida, Mr. Trump said in a speech: “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 then specified that the shutdown would be “temporary,” and, rather than target Muslims per se, would apply to certain “areas of the world when there is a proven history of terrorism against the United States, Europe, or our allies, until we understand how to end these threats.” Politico, Transcript: Donald Trump’s National Security Speech (June 13, 2016).
62. Soon after, in a July 17, 2016 televised interview, when confronted with his running mate Michael Pence’s statement calling a Muslim ban unconstitutional, Mr. Trump responded: “So you call it territories. OK? We’re gonna do territories.” 60 Minutes, CBS, The Republican Ticket: Trump and Pence, July 17, 2016. A week later, in an interview on July 24, 2016, Mr. Trump was asked if his recent remarks signified a “rollback” from his proposal for a “Muslim ban.” He answered: “I don’t think so. I actually don’t think it’s a rollback. In fact, you
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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. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” Meet the Press, NBC, July 24, 2016. And on October 9, 2016, during a televised presidential debate, Mr. Trump said, “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” Presidential Debate at Wash. Univ. in St. Louis, Oct. 9, 2016.
C. The Prior Executive Actions: The Administration Implements Its Muslim Ban 63. On January 27, 2017, one week after the inauguration, President Trump fulfilled his campaign promise to ban Muslims from entering the United States. He signed Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Executive Order”). At the signing ceremony, after reading the title of the Order aloud, President Trump remarked, “We all know what that means.” 64. Among other things, the January 27 Executive Order temporarily barred entry of all nationals from seven majority-Muslim countries Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia (Section 3(c)), temporarily suspended the entire USRAP for 120 days (Section 5(a)), established a policy of prioritizing Christian refugees upon resuming the program (Section 5(b)), and indefinitely barred entry of Syrian refugees (Section 5(c)). Under § 3(g) and 5(e) of the January 27 Executive Order, “the Secretaries of State and Homeland Security may, on a case-bycase basis, and when in the national interest,” issue visas or other immigration benefits to or admit as refugees nationals of the listed. 65. President Trump made clear that the purpose of these provisions was to favor Christian refugees. In an interview with Christian Broadcasting Network, just hours before he signed the January 27 Executive Order, President Trump was asked the following question about his impending new refugee policy, “As it relates to persecuted Christians, do you see them as kind
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of a priority here?” President Trump replied, “Yes.” He continued, “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . . And I thought it was very, very unfair. So we are going to help them.” David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBN News (Jan. 27, 2017).
66. Just one day after President Trump signed the January 27 Executive Order, his advisor and surrogate Rudy Giuliani eliminated any doubt whether the Order was in fact the “Muslim ban” that President Trump repeatedly promised during the campaign. On January 28, 2017, Giuliani stated: “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.” Giuliani explained that he assembled a team that came up with a Muslim ban by another name, focusing on places that just happened to be majority Muslim, “where there are [sic] substantial evidence that people are sending terrorists into our country.” Amy B. Wang, Trump asked for a “Muslim ban,” Giuliani says - and ordered a commission to do it “legally,” Wash. Post (January 29, 2017).
67. The announcement of the Executive Order late in the afternoon on Friday, January 27, 2017 set off immediate chaos and confusion around the world, as senior officials responsible for the nation’s defense, homeland security, and control of the nation’s borders denied having been adequately informed or consulted about the Order.
68. The January 27 Executive Order took effect immediately upon signing, with no notice, grace period, or even a delay for people already in transit. Individuals who had legal permission to work or study in the United States, and who happened to be out of the country for
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work, conferences, family visits, or other reasons, were instantly prevented from returning to their homes, classes, and jobs.
69. The same day, the State Department issued a one-page document “provisionally revok[ing] all valid nonimmigrant and immigrant visas of nationals of” the seven countries specified in the Executive Order. U.S. Dep’t of State, Letter from Edward J. Ramotowski (Jan. 27, 2017). The revocation affected between 60,000 and 100,000 valid visas held by students, spouses, workers, and numerous others who were already present in the United States. DOJ Lawyers Says More than 100,000 visas have been revoked; State Department says number is 60,000, ABA Journal (Feb. 3, 2017).
70. The chaotic implementation of the January 27 Executive Order threw Legal Permanent Residents and visa holders in turmoil. Within four days, the administration reversed position three times on whether the order applied to Legal Permanent Residents.
71. Defendants also (i) ceased processing visas to nationals of the seven countries that had been approved but not issued, (ii) cancelled consular appointments and interviews for nationals of the seven countries, (iii) stopped processing all refugee applications for nationals of the seven countries, including all field interviews, (iv) blocked visa holders and lawful permanent residents from entering the United States, and (v) detained approximately 2,000 individuals at airports and sent 140 back to their country of origin.1
72. According to reports submitted to Plaintiff IABA and the other organizational plaintiffs, many Iranian nationals abroad were denied permission to board flights to the United States because of the January 27 Executive Order and its implementation. Hundreds of Iranian individuals were denied entry to the United States, despite having valid visas or other
1 http://www.cnn.com/2017/08/31/politics/trump-travel-ban-settlement/index.html
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authorization to enter the United States, and individuals who arrived at U.S. airports and were turned back and put on flights out of the country. Many other lawful permanent residents and visa holders reported delays, more intrusive questioning or other hurdles upon arrival, including reports filed after multiple courts had enjoined the provisions of the January 27 Executive Order. Dual citizens and lawful permanent residents also reported being denied entry. This unlawful conduct also affected nationals of the other six affected countries.
73. On January 28, federal courts in Brooklyn, New York and Alexandria, Virginia entered temporary restraining orders enjoining the government from detaining valid visa holders and legal permanent residents, respectively.2
74. On February 3, 2017, the U.S. District Court for the Western District of Washington temporarily enjoined enforcement key aspects of the January 27 Executive Order nationwide, including §§ 3(c) and 5(a), 5(b), 5(c), and 5(e).3 On February 9, 2017, the Ninth Circuit denied the government’s motion to stay the preliminary injunction.4
75. On February 13, 2017, the U.S. District Court for the Eastern District of Virginia granted the Commonwealth of Virginia’s motion for a preliminary injunction and enjoining enforcement of § 3(c), ruling that the Commonwealth was likely to succeed on the merits of its Establishment Clause claim.5
76. At a press conference on February 16, 2017, one week after the Ninth Circuit issued its decision, President Trump announced that he intended to appeal the Ninth Circuit
2 Aziz v. Trump, No. 17-cv-116, 2017 WL 386549, at *1 (E.D. Va. Jan. 28, 2017). Darweesh v. Trump, Case No. 17-cv-480, slip. op. at 2 (E.D.N.Y. Jan. 28, 2017). 3 Washington v. Trump, No. 17-0141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). 4 Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017). 5 Aziz v. Trump, No. 17-cv-116, 2017 WL 580855, at *11 (E.D. Va. Feb. 13, 2017).
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decision, and that “We’re issuing a new executive action next week . . .” Donald Trump Press Conference Transcript, N.Y. Times (Feb. 16, 2017).
77. The same day, in seeming contradiction of the President’s statements, the government notified the Ninth Circuit that it would not seek rehearing en banc of the denial of its motion to stay. The government explained that rehearing was unnecessary because “the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns . . . .” U.S. Suppl. Br. on En Banc Consideration at 4, Washington v. Trump, No. 17-35105 (9th Cir. filed Feb. 16, 2017), ECF No. 154. The government repeatedly made similar representations to this Court.
78. On February 21, 2017, Stephen Miller, a senior advisor to the President, stated in a televised interview: “[B]ecause of the exigency of the situation[,] the President is going to be issuing a new executive action . . . these are mostly minor, technical differences. Fundamentally, you are still going to have the same, basic policy outcome for the country. . . . [T]hose basic policies are still going to be in effect.” The First 100 Days, Fox News (Feb. 21, 2017).
79. In the wake of the Ninth Circuit decision, President Trump asked the Department of Homeland Security for an intelligence assessment to support his asserted national security justifications for the January 27 Executive Order. See Max Greenwood, White House rejects DHS research on travel ban: report, The Hill (Feb. 25, 2017). The press obtained a draft of the resulting DHS report and published it on February 24, 2017. The draft report concluded that citizenship was an “unlikely indicator” of terrorism threats against the United States. Vivian Salama & Alicia A. Caldwell, AP Exclusive: DHS Report Disputes Threat from Banned Nations, Associated Press (Feb. 24, 2017). The draft report also found that very few persons from the
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seven countries included in the January 27 Executive Order had carried out or attempted to carry out terrorism activities in the United States since 2011. Specifically, the DHS report determined that, of the 82 people who were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States, half were U.S. citizens born in the United States, and the remaining persons were from 26 countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Of the seven countries designated in the January 27 Order, the report identified only Somalia and Iraq as being among the leading countries-of-origin for the terrorists analyzed in the report. Id. The report did not include Iran on this list. A senior Trump administration official commented that the Department of Homeland Security Report was “not the intelligence assessment the president asked for.” Greenwood, supra.
80. In an interview published on February 28, 2017, Stephen Miller floated an entirely new justification for the January 27 Executive Order that was unrelated to national security: that refugees compete with U.S. workers, that “a smaller number of refugees will have some effects in terms of raising wages” and that admitting refugees burdens U.S. taxpayers. Joshua Green, Does Stephen Miller Speak for Trump? Or Vice Versa?, Bloomberg Business Week (Feb. 28 2017).
81. On March 6, 2017—a month after the Western District of Washington injunction, and 19 days after the President first announced he would enact a new Order—President Trump signed Executive Order No. 13,780, which bore the same title as the January 27 Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 13,209 (Mar. 9, 2017).
82. Like the January 27 Order, the March 6 Order suspended travel of refugees under USRAP and decisions on refugee applications for 120 days, see id. § 6(a); it suspended entry into
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the United States of nationals of six of the seven majority-Muslim countries designated in the January 27 Executive Order—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days, id. § 2(c); and it provided for a potential future expansion of the immigration ban to nationals from additional countries, id. §§ 2(a)-(b), (d)-(f).
83. Section 3(b) of the March 6 Executive Order listed categorical “exceptions” to the travel ban including (i) lawful permanent residents, and (ii) foreign nationals admitted or paroled into the United States “on or after the effective date of this order.” Like the January 27 Executive Order, the March 6 Executive Order provided that “a consular officer, or as appropriate, the Commissioner, U.S. Customs and Border Protection . . . may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended” if he or she determines that “denying entry during the suspension period would cause undue hardship . . . [and the individual’s] entry would not pose a threat to national security and would be in the national interest.” Id. § 3(c); compare January 27 Executive Order § 3(g).
84. The March 6 Executive Order contains paragraphs addressing each of the six designated countries. With regard to Iran, the Order states: “Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.” Id. § 1(e)(i).
85. The March 6 Executive Order mentions two concrete examples of persons who have committed terrorism-related crimes in the United States after entering the country “legally on visas” or “as refugees”: “In January 2013, two Iraqi nationals admitted to the United States as
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refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction . . . .” Id. § 1(h).
86. The March 6 Executive Order did not include nationals of countries that the State Department has identified as “Terrorist Safe Havens,” including U.S. allies such as Egypt and Pakistan, or any predominantly Christian countries, such as the Philippines, Colombia, or Venezuela. See Dep’t of State, Bureau of Counterterrorism & Countering Violent Extremism, Country Reports on Terrorism 2016 (June 2016), https://www.state.gov/documents/organization/ 258249.pdf.
87. Mere hours after reissuing the March 6 Executive Order, President Trump sent an email to his supporters soliciting funds for his reelection campaign extolling the fact that the March 6 Executive Order continued to target nationals of “Islamic” countries. David Badash, Trump Already Fundraising Off New Muslim Ban, The New Civil Rights Movement (Mar. 6, 2017). And shortly after the March 6 Executive Order was issued, White House Press Secretary Sean Spicer said that the “principles” of the revised Executive Order remained the same as the prior order.
88. On March 15 and 16, 2017, federal courts in Hawaii and Maryland enjoined portions of the March 6 Order, holding respectively that plaintiffs had established a strong likelihood of success on their Establishment Clause claim, and on their Establishment Clause and INA antidiscrimination claims.6
6 Hawaii v. Trump, 241 F. Supp.3d 1119, 1140 (D. Haw. 2017); IRAP v, Trump, 241 F.Supp.3d 539, 565-66 (D. Md. 2017).
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89. The following evening, on March 16, in a speech in Nashville, Tennessee the President said that the March 6 Order was a “watered down version of the first order” and that “we ought to go back to the first one and go all the way.” The President also stated the revised order targeted nationals of “Islamic” countries. Katie Reilly, President Trump’s Response to the Travel Ban Ruling, Time (Mar. 16, 2017).
90. Despite the series of federal court rulings enjoining both the January 27 Executive Order and the March 6 Order, the government failed to restore the status quo ante. Government officials had cancelled consular appointments, had arbitrarily denied visas, and put countless other applications on hold causing individuals seeking visas to encounter substantial delays far beyond normal processing times. Data released by the State Department show that the number of visas issued to individuals from the seven countries covered by the January and March Orders dropped by 40% in March and 50% in April, compared with the monthly average from the prior year. This trend has continued.7
7 U.S. Dep’t of State Bureau of Consular Affairs, Report of the Visa Office 2016, VII. Immigrant Visas Issued by Foreign State of Chargeability (All Categories): Fiscal Years 2007-2016 (2016), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/ FY16AnnualReport-TableXIV.pdf; U.S. Dep’t of State, Bureau of Consular Affairs, Report of the Visa Office 2016, XVIII. Nonimmigrant Visas Issued by Nationality (Including Border Crossing Cards): Fiscal Years 2007-2016 (2016), https://travel.state.gov/content/dam/visas/Statistics/ AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableXVIII.pdf; U.S. Dep’t of State, Bureau of Consular Affairs, Monthly Immigrant Visa (IV) Issuances (2017), https://travel.state. gov/content/visas/en/law-and-policy/statistics/immigrant-visas/monthly-immigrant-visaissuances.html; U.S. Dep’t of State, Bureau of Consular Affairs, Monthly Nonimmigrant Visa (NIV) Issuances (2017), https://travel.state.gov/content/visas/en/law-and-policy/statistics/nonimmigrant-visas/monthly-nonimmigrant-visa-issuances.html.
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Visas issued to nationals of:
Iran

Monthly Avg. 2014
3,417

Monthly Avg. 2015
3,545

Monthly Avg. 2016
3,094

Mar. 2017
1,965

Syria

1,221 997 977 389

Yemen

732 639 1,517 646

Libya

413 298 224 169

Somalia

171 117 187 198

Apr. 2017
1,468 533 333 116 85

May 2017
2,108 613 720 158 132

June 2017
2,434 558 494 121 137

July 2017
1,747 415 496 152 176

Aug. 2017
2,680 504 768 112 132

Sept. 2017
1,803 427 615 158 128

91. The government appealed the Maryland and Hawaii decisions. On the eve of the

Fourth Circuit argument, President Trump’s campaign website removed statements about the

President’s plan to ban all Muslims from entering the United States. Dan Merica, Trump

campaign removes controversial Muslim ban language from website, CNN (May 8, 2017).

92. On May 25, 2017, the Fourth Circuit affirmed the District of Maryland preliminary injunction.8 The government subsequently filed a writ of certiorari and asked the Supreme Court

to stay the injunctions in the IRAP and Hawaii litigations.

93. On June 5, the President criticized the decision and the Department of Justice

strategy for defending the March 6 Executive Order, tweeting: “The Justice Dept. should have

stayed with the original Travel Ban, not the watered down, politically correct version they

submitted to S.C. . . . The Justice Dept. should ask for an expedited hearing of the watered down

Travel Ban before the Supreme Court - & seek much tougher version!”

94. On June 12, the Ninth Circuit affirmed the District of Hawaii preliminary injunction.9 The government subsequently filed a writ of certiorari.

95. On June 26, the Supreme Court granted certiorari, and affirmed the injunctions

insofar as they barred issuance of visas to individuals with a “credible claim of a bona fide

8 IRAP v. Trump, 857 F.3d at 606 (4th Cir. 2017). 9 Hawaii v. Trump, 859 F.3d at 741 (9th Cir. 2017).
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relationship with a person or entity in the United States.” The Supreme Court stayed the

injunctions to the extent visas were issued to individuals without “bona fide” relationships and

vacated the injunctions with respect to refugees, allowing the 120-day refugee admission ban to

go into effect.

96. Following the Supreme Court order, the Defendant agencies demonstrated

recalcitrance by, among other things, continuing to delay processing of visa applications and

implementing the refugee admission ban in a discriminatory manner. Notably, although the 120

day refugee admission ban was purportedly applicable to all refugees from all countries, data

from the U.S. Refugee Processing Center show that, in the months following implementation of

the refugee admission ban in late June 2017, admissions of refugees from European countries

continued at the roughly the same pace as prior to the ban, while refugee admissions from Iran

and other majority-Muslim countries plummeted.

Iran

2015 Average Monthly Admissions
259

2016 Average Monthly Admissions
313

10/16–6/17 Average Monthly
Admissions
264

Iraq

1,056

823

731

Syria

140

1,049

711

Somalia

738

752

632

Europe

197

330

477

Refugee Ban Implemented June 26, 2017

July 2017

Aug. 2017

12 68

59 101

64 48

214 54

300 343

97. The Defendant agencies demonstrated recalcitrance by interpreting “bona fide”

relationship in an unduly narrow and constrained way. For example, in the immediate aftermath

of the decision, the Defendant agencies took the position that a fiancé of a U.S. person lacked a

bona fide relationship. Even after reversing that position, the Defendant agencies took the

position that grandparents and grandchildren, aunts and uncles, cousins, nieces and nephews, and

brothers- and sisters-in-law did not have a close family relationship with a person in the United

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States. Defendant agencies also took the position that refugees who had obtained assurances from a U.S.-based resettlement agency and refugees in USRAP through the Lautenberg program also lacked bona fide relationships. On July 13, the U.S. district court for the District of Hawaii preliminarily enjoined the government from applying the March 6 Order to exclude such individuals, which was subsequently affirmed by the Ninth Circuit. Hawaii v. Trump, No. 1716246 (9th Cir. Sep. 7, 2017).
98. On August 17, President Trump tweeted: “Study what General Pershing . . . did to terrorists when caught,” referencing an apocryphal story of a purported massacre of Muslims with bullets dipped in pig’s blood. He then tweeted: “There was no more Radical Islamic Terror for 35 years!”
99. On September 15, President Trump tweeted that the “travel ban into the United States should be far larger, tougher, and more specific—but stupidly, that would not be politically correct!”
D. The Irrational and Prejudicial Basis for the September 24 Proclamation 100. On September 24, 2017, President 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 September 24 Proclamation indefinitely bans the issuance of any immigrant visas to Iranian nationals (as well as the other listed countries), and any nonimmigrant visas to Iranian nationals other than student or exchange visas (which will be subject to unspecified “enhanced screening and vetting requirements”). 101. This ban means that Iranians with bona fide relationships with entities or individuals in the United States (including U.S. citizens and lawful permanent residents) may not receive a visa to enter the country. This will bar countless U.S. citizens and lawful permanent residents from marrying individuals they wish to marry, from reuniting with family members, or
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sponsoring Iranians to enter the United States for employment or business purposes, unless such individuals are able to obtain a discretionary waiver by showing that denial of their entry would cause “undue hardship,” that their entry “would not pose a threat to the national security or public safety of the United States,” and their entry would be in the “national interest.”
102. Of the countries specified in the January 27 Executive Order, Iran had the largest total number of legal entrants into the United States (310,182) between 2006 and 2015. Twothirds of those entrants arrived in the United States on temporary visas. Of the estimated 70,000 visas issued in 2015 to nationals of the eight countries singled out by the September 24 Proclamation, over 60% are to Iranian nationals.
103. As the Executive Actions have proceeded, they have been more targeted towards Iranians and the anti-Iranian character of the policy is more visible. The non-immigrant visa restrictions as to Iranians in the September 24 Proclamation are more restrictive than any other Muslim country listed in the original travel ban except Syria: all Iranian nonimmigrant visas issuances are banned except student (F or M) and exchange visas. In contrast, the only nonimmigrant visas banned for Libyan, Yemeni, and Chadian nationals are business and tourist visas, and there are no categorical bans on Somali non-immigrant visas.
104. The stated justifications contained in the September 24 Proclamation as to Iran— that the Iranian government “regularly fails to cooperate with the United States Government in identifying security risks,” “is the source of significant terrorist threats,” “fails to receive its nationals subject to final orders of removal from the United States,” and has been designated by the State Department “as a state sponsor of terrorism”—are all directed at grievances with the Iranian government and provide no support for a wholesale policy of excluding Iranian nationals.
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105. In stating that Iran “is the source of significant terrorist threats: and is a “state sponsor of terrorism,” the U.S. government cited Iran’s support for or engagement in activities with non-Iranian individuals, and for actions that have occurred in countries outside of Iran other than the United States. Country Reports on Terrorism 2016 (June 2016), supra, at 300-01.
106. Barring Iranian nationals from obtaining visas that would allow them to emigrate to the United States, to visit family in the United States, or to come here for work or business purposes because of ongoing disagreements with the Iranian government makes no sense. Preventing Iranian nationals from receiving visas to enter into the United States does nothing to protect anyone in the United States. Nothing in the September 24 Proclamation identifies any act of terrorism or national security risk posed by an Iranian national.
107. According to a study conducted by the CATO Institute that reviewed data from 1975-2015, there was not a single case of an American being killed in a terrorist attack in this country by a person born in Iran. No individuals from Iran participated in the four major terrorist attacks in recent U.S. history that have been used at various times to justify the Executive Actions—the September 11, 2001 terrorist attack, the 2013 Boston Marathon bombing, the December 2015 San Bernardino attack, or the June 2016 Orlando mass shooting. Indeed, the initial first responder to the San Bernardino tragedy was an Iranian-American medic.
108. The September 24 Proclamation claims to have based the selection of countries on a “worldwide review” to determine what additional information is “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.” The Proclamation states this review “culminated in a report” submitted to the President by the Secretary of Homeland Security on July 9, 2017. This report was purportedly followed by a second report on September 15, 2017, in which the Secretary of
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Homeland Security recommended “entry restrictions and limitations on certain nationals of 7 countries.” September 24 Proclamation (emphasis added).
109. In contrast to the description of the selection process in the September 24 Proclamation, the Wall Street Journal reported that the Secretary of Homeland Security had originally flagged 17 nations as failing to comply with the minimum security standards to permit its nationals to enter the United States. Laura Meckler, Trump Administration to Replace Travel Ban with More Targeted Restrictions, Wall Street Journal, Sep. 22, 2017.
110. Press reports also indicate that Senior Advisor Stephen Miller recommended adding at least one country to the list of designated countries in the September 24 Proclamation over the objections of the Pentagon and the State Department. Olivia Beavers, Pentagon, State officials opposed Trump’s decision to include Chad in travel ban, The Hill, Sep. 27, 2017. This is indicative that the process was subject to political considerations that undermine the purported national security rationale for the September 24 Proclamation. In this regard, it is notable that the September 24 Proclamation states that the Secretary of Homeland Security only recommended entry restrictions on nationals of seven countries, but the September 24 Proclamation imposes restrictions on nationals of eight countries.
111. The inclusion of North Korea, Venezuela, and Chad on the list of designated countries does nothing to remove the anti-Muslim animus that underlies the September 24 Proclamation. Indeed, press reports suggest that their inclusion was cosmetic to allow the administration to argue the measure “was not a Muslim Ban.” Jack Moore, Muslim Ban No More? Trump Battles Accusation By Adding “Rogue States” to Travel Ban, Newsweek (Sep. 25, 2017). Like Iran, Libya, Syria, Somalia, and Yemen, Chad is a majority-Muslim country. As noted, the restrictions that apply to Venezuela are limited to certain government officials and their
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families, and North Koreans were issued 9 immigrant visas in 2016, several orders of magnitude less than for nationals any other country on the designated list. The inclusion of two non-Muslimmajority countries that account for a small handful of visas does not fundamentally change the complexion of the travel ban—it is still a Muslim ban, consistent with what the President promised to deliver. Indeed, press reports reflect that the list has left administration officials “befuddled and frustrated.” Emily Rauhala, Almost No North Koreans Travel to the U.S., So Why Ban Them?, Wash. Post (Sept. 25, 2017); Helene Cooper, Chad’s Inclusion in Travel Ban Could Jeopardize American Interests Officials Say, N.Y. Times, Sept. 26, 2017.
112. Conversely, the ban on issuing visas to Iranian citizens (as opposed to Iranian government officials) demonstrates the anti-Muslim bias of the September 24 Proclamation, particularly in comparison to the restrictions on Venezuelan government officials. The only predominantly Christian country identified in the September 24 Proclamation is Venezuela. The State Department identifies Venezuela, like Iran, as a “terrorist safe haven.”10 And the September 24 Proclamation notes that Venezuela, like Iran, is “uncooperative in verifying whether its citizens pose national security or public-safety threats,” and is “not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States.” Yet, the September 24 Proclamation restricts entry only of Venezuelan government officials who work for particular Venezuelan ministries, while the Iranian ban extends to all Iranians.
113. Further, in light of how Iranian nationals are vetted for visas, it is clear that the government’s stated reason for banning their entry—purportedly because the U.S. government cannot accurately vet applicants due to noncooperation from the Iranian government—is mere
10 See Dep’t of State, Bureau of Counterterrorism & Countering Violent Extremism, Country Reports on Terrorism 2016 (June 2016), https://www.state.gov/documents/organization/ 258249.pdf.
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pretext. Iran has a robust and secure system for generating documentation, including birth certificates and national identity cards, that has long been a successful and effective mechanism to vet Iranian nationals. The government of Iran has not had any role in vetting Iranian nationals to obtain U.S. visas for over 40 years. Iran and the United States have no diplomatic relations. For decades, Iranian nationals have had to travel to U.S. consulates outside of Iran to apply for visas. The Iranian government provides no assistance in Iranian applicants for U.S. visas.
114. The September 24 Proclamation, like the January 27 and March 6 Executive Orders before it, is contrary to longstanding U.S. policies of distinguishing the acts of the Iranian government from the Iranian people at large and of encouraging democracy. The bar on Iranian visas runs contrary to forty years of a policy of engagement with the Iranian people premised on the idea that fostering personal and cultural ties between our countries will undermine the Iranian regime. The United States has found “significant human rights problems in Iran,” including “severe restrictions on civil liberties, including the freedoms of assembly, association, speech (including via the internet), religion, and press.” U.S. Dep’t of State, Iran 2015 Human Rights Report, at 1, in Country Report on Human Rights Practices for 2015 (2015).
115. The premise of the September 24 Proclamation—that the government of Iran should have some role in vetting its nationals who are seeking immigrant or nonimmigrant visas—is not only contrary to forty years of consistent practice in adjudicating visa applications, it also ignores the risk that U.S. consultation with the Iranian government concerning visa applications would potentially place visa applicants in danger and will discourage Iranians from seeking visas.
116. These weak and shifting rationales, particularly in light of the different approach taken toward citizens of Venezuela, is evidence that the reasons stated in the September 24
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Proclamation for a categorical and indefinite ban on immigration and most travel to the United States by Iranian nationals are pretext and that the real reason is anti-Muslim and anti-Iranian bias.
117. All U.S. agencies engaged in refugee admissions have agreed that the United States government employs “rigorous security measures” and multi-step screening processes that subject all refugees “to the highest level of security checks for any category of traveler to the United States,” and “protect against threats to our national security.” U.S. Dep’t of State, U.S. Dep’t of Homeland Security, U.S. Dep’t of Health and Human Servs., Proposed Refugee Admissions for Fiscal Year 2017: Report to the Congress (Sept. 15, 2016), at v.
118. The September 24 Proclamation’s arbitrary exclusion of all Iranian nationals, regardless of personal circumstances, including Iranian dissidents, religious minorities facing persecution, and those seeking to exercise their rights of free speech, contradicts the recommendations of those agencies directly responsible for making policy decisions that balance the nation’s foreign policy objectives with national security threats.
119. The categorical ban on Iranian nationals is inconsistent with Congress’s longstanding recognition that granting protection to vulnerable Iranians in the United States would advance the nation’s foreign policy objectives.
120. The national security rationale of the September 24 Proclamation is also contrary to the central conclusions of the February 2017 DHS report that President Trump retroactively commissioned to provide a post hoc rationale for the travel ban that citizenship was an “unlikely indicator” of terrorism threats against the United States.
121. The September 24 Proclamation, like the January 27 and March 6 Executive Orders has sown fear and anxiety in the community. In a 2017 survey of Iranian-Americans, 78%
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of respondents reported being concerned about “new policies that may deter travel between the U.S. and Iran” with half being “very concerned.” Fifty-six percent report personally experiencing discrimination, while 63% report that they know of other Iranian Americans who have personally experienced discrimination—an increase from 48% in 2016. Even U.S. citizens and Legal Permanent Residents feel marginalized. They are concerned about the stability of the lives they have been building here in America. These government restrictions continue to have a chilling effect on Iranian Americans who are U.S. residents and citizens and who need to be able to freely leave and return to the United States for work or family reasons but feel they are at risk in doing so. Current visa holders who are studying or working in the United States are afraid of being unable to renew their visas and being forced to leave for no reason other than being Iranian—with no prospect of future return.
122. The September 24 Proclamation will cause an indefinite separation of families. Individuals now in Iran who have close ties to Iranian-Americans and other Americans in the United States (like fiancés or parents and their children) are no longer eligible to obtain visas even if they meet all the requirements established by Congress and existing regulations. The September 24 Proclamation exacerbates the impact of the prior Executive Actions by turning the 120 day-ban on travel and immigration into an indefinite suspension, meaning anyone who was about to apply or in the visa application process may never be able to obtain permission to come to the United States.
123. The September 24 Proclamation, like the January and March Executive Orders before it, has amplified stigma and discrimination and will exacerbate the challenges that immigrant groups, especially immigrants from primarily Muslim countries like Iran, already face in the United States. This climate of fear and animus has contributed to a rise in hate crimes
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against Americans of Iranian descent and others similarly targeted on the basis of religion and national origin.
E. The Irrational and Prejudicial Basis for the October Refugee Ban 124. On October 24, President Trump issued Executive Order No. 13,815, titled “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities.” At the same time, Secretary of State Rex Tillerson, Acting Secretary of Homeland Security Elaine Duke, and Director of National Intelligence Daniel Coats released a Memorandum to the President dated October 23, 2017, describing how that October 24 Executive Order will be implemented. 125. Read together, the September 24 Proclamation and the October Refugee Ban implement an effective ban against Muslim refugees. 126. Although the October 24 Executive Order provides that (i) the 120-day ban on the USRAP admitting new refugees is lifted, and (ii) refugees are not covered by the September 24 Proclamation, the October 23 Memorandum states that a new ban will remain in effect for at least 90 additional days for refugees from 11 particular countries. 127. Nine of the 11 countries targeted by the October Refugee Ban are Muslim-majority countries. Five of those Muslim-majority countries were identified in the September 24 Proclamation as well as the earlier iterations of the travel ban—Iran, Libya, Somalia, Syria, Yemen. The October Refugee Ban also includes four additional Muslim-majority countries— Egypt, Mali, Iraq, and Sudan, the latter two of which had been identified in earlier iterations of the travel ban. The two non-Muslim-majority countries are South Sudan and North Korea. See Y. Torbati & M. Rosenberg, Under Trump plan, refugees from 11 countries face additional U.S. barriers, Reuters (Oct. 24, 2017).
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128. In addition, the October 23 Memorandum specifies that the Departments of State and Homeland Security will “prioritize refugee applications” from other countries (i.e., other than the 11 countries) and will “reallocate . . . resources” that would otherwise be “dedicated to processing nationals” of the 11 countries “to process applicants” from other countries.
129. The October 23 Memorandum acknowledges that refugee applicants from the 11 countries specified in the October 24 Executive Order were already required to go through a heightened security-screening process called the Security Advisory Opinion (SAO) process. The October 24 Executive Order found that “the refugee screening and vetting process generally meets the uniform baseline for immigration screening and vetting.” October 24 Executive Order § 2(b).
130. In recent years, Iran and the eight other predominantly Muslim countries have been the source of approximately 45% of the total refugees admitted to the United States, with the largest contingents coming from four countries: Iran, Iraq, Somalia, and Syria (41%, 38%, and 45% of total refugees in 2016, 2015, and 2014 respectively were from those four countries).
131. The October Refugee Ban follows the administration’s announcement that, for the fiscal year starting October 1, 2017, the United States would admit only 45,000 refugees—the smallest number admitted since Congress enacted the Refugee Act of 1980 and substantially fewer (35–60%) than in recent fiscal years.
132. Taken together, the October Refugee Ban and the reduction in refugee admissions effectively bar refugees from the Muslim-majority countries that send the most refugees to the United States. Although the ban is nominally for 90 days, after the 90-day period expires, the Government may extend it. And a 90-day delay for refugees from Muslim-majority countries while refugee admissions from other countries are prioritized is a critical delay; when the 90-day
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period expires, there is a significant risk that all available spots in the USRAP for this fiscal year
will already be filled by applicants from other, non-Muslim countries. This means that that no
Iranian refugees, nor any refugees from the eight other Muslim-majority countries, will be
admitted to the United States for at least another full year. In addition, at the end of the 90 days,
President Trump could simply issue a new order extending or permanently codifying the new
refugee restrictions, just as he permanently codified the earlier travel bans in the September 24
Proclamation.
133. In other words, the Defendants’ actions constitute a subterfuge, a Muslim Refugee
Ban by another name, precisely of the type that President Trump promised throughout his
campaign and immediately before signing the January 27 Executive Order. See supra ¶ 65 (“If
you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . .
And I thought it was very, very unfair. So we are going to help them.”).
134. The USRAP is a rigorous process, involving multiple layers of review and
screening of prospective refugees before they can be resettled in the United States. As
summarized in the Ninth Circuit decision in Hawaii v. Trump, No. 17-16426 (Sep. 7, 2016):
 Most refugees first register with the United Nations High Commissioner for Refugees (UNHCR) in the country to which he or she has fled. UNHCR interviews each refugee applicant and collects identifying documents. After UNHCR determines that an applicant meets the United States’ criteria for resettlement consideration and presents no disqualifying information, UNHCR refers the case to a U.S. Embassy, which then sends the case to one of nine Resettlement Support Centers (RSC). An RSC, under the guidance of the State Department, next refers an applicant for resettlement consideration and helps with completing other technical requirements. The RSC interviews the applicant, collects identification documents and information, and initiates security checks.
 United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security, then conducts a personal interview with the refugee in the country in which the refugee is located and determines whether the applicant qualifies for refugee status under U.S. law and meets other resettlement criteria. A refugee who meets these qualifications is then security screened.
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USCIS next notifies the Bureau of Population, Refugees, and Migration (PRM), a division of the State Department, that a refugee applicant is approved. The applicant then undergoes medical screening.
 After refugees have cleared these hurdles, the RSC then obtains a “sponsorship assurance” from one of nine private non-profit organizations, known as resettlement agencies.11 All refugees receive a sponsorship assurance from a resettlement agency before they travel to the United States. The assurance is a “written commitment, submitted by a [resettlement agency], to provide, or ensure the provision of, the basic needs . . . and core services . . . for the refugee(s) named on the assurance form.” Resettlement agencies determine the best resettlement location for a refugee candidate, and consider whether the refugee has family ties in a certain locality, whether the local agency has the language skills necessary to communicate with the refugee, whether the refugee’s medical needs can be addressed in the local community, and whether employment opportunities are available and accessible.
 Only after an applicant has been approved for resettlement, the applicant has passed all required medical exams, and the RSC has obtained the necessary sponsorship assurance from the resettlement agency, does the RSC then refer the case for transportation to the United States through a PRM-funded program. Once a refugee reaches his or her resettlement location in the United States, the resettlement agency and its local affiliate facilitate the initial reception; provide core services, including housing, furnishings, seasonal clothing, and food; and assist in obtaining medical care, employment, educational services, and other needed services.
135. Many refugees affected by the October Refugee Ban are fleeing persecution in
their home countries based on their political beliefs, religion, or sexual orientation. As described
above, these individuals have been vetted by the U.N. High Commissioner for Refugees and
referred to USRAP. Many refugees have difficult lives while they are waiting for resettlement; if
these individuals are denied admission to the United States, there is a risk that they will be
deported back to their home country where they will be persecuted.
11 The nine resettlement agencies are: Church World Service, Episcopal Migration Ministries, Ethiopian Community Development Council, HIAS, International Rescue Committee, Lutheran Immigration and Refugee Service, United States Committee for Refugees and Immigrants, United States Conference of Catholic Bishops, and World Relief.
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136. Many refugees have significant connections with the United States, including family members or private sponsors; approximately two-thirds of refugees who are resettled in the United States have family members residing in the United States. J. Brandt, What the partially reinstated travel ban meets for refugees, Brookings Institution (June 29, 2017). The October Refugee Ban thus harms many individuals in the United States.
137. As detailed below, the October Refugee Ban also harms organizations that assist refugees, such as Pars Equality Center and the IABA.
F. Harm Caused to Plaintiffs by the Executive Actions 1. Organizational Plaintiffs
138. Defendants have frustrated the organizational Plaintiffs’ missions. Pars, IABA, and PAAIA have each been forced to divert a significant proportion of their resources to respond to the effects of the Executive Actions and their implementation and enforcement over the last nine months. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
139. Since the President signed the January 27 Executive Order and continuing to today, the Executive Actions are having adverse effects on the Iranian-American community, and the government’s policy is harming and will continue to injure the organizational plaintiffs and the Iranian-American community.
140. Indeed, just like the January 27 and March 6 Executive Orders, the September 24 Proclamation continues to single out Iranian Americans. When the September 24 Proclamation takes effect, it will impose an indefinite ban on Iranian nationals immigrating to the United States and traveling to the United States on most types of visas, as well as Iranian refugees. The discrimination and animus based on religion and national origin under this policy will continue to demean and stigmatize the Iranian-American community. The continuation of this policy of exclusion will continue to adversely impact American businesses, as well as U.S.-based families.
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The Iranian-American community is by far the largest community harmed by the September 24 Proclamation.
141. At the moment, it is only through the actions of multiple federal courts that some individuals have obtained protection from the arbitrary January 27 and March 6 Executive Orders. However, despite those court orders, Iranian nationals who had pending visa applications on January 27 (as well as those who have filed since the Executive Actions have been enjoined) continue to face substantial delays. The Organizational Plaintiffs have been fielding hundreds of reports from individuals since January 27 as well as directly counseling visa applicants and their family members, finding many individuals reporting that their applications are failing to proceed normally. These reports include cancelled appointments with long delays to reschedule, applicants receiving conflicting information or inadequate about their status and next steps in the process from consular officials, summary denials, and improper questions about applicant religion. And those who successfully navigate to the final step of the process find their applications stalled in the State Department’s “Administrative Processing” procedure for unusually long periods (far longer than State Department guidance suggests visa processing should take), meaning they are not receiving any final determination as to approval or denial.
142. Now that the September 24 Proclamation has been issued, those delays may function as a de facto bar to any visa issuance. On October 18, new restrictions will apply that may make it impossible for any Iranian who does not receive a visa before that date to obtain permission to travel to the United States, unless they are seeking admission as a student.
143. Although the September 24 Proclamation promises that the State Department will establish a waiver process, the waiver system is a separate and inherently unequal substitute for established visa processes and procedures. There are still essentially no guidelines for applying
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for or obtaining a waiver, which the State Department appears to contemplate processing via informal, subjective conversations at consular interviews rather than formal and consistent agency procedures—without any option for individuals of the designated countries who have been or will be denied a visa to subsequently petition for a waiver. The standards for applying for a waiver require the applicant to demonstrate both that its denial would cause “undue hardship,” that their entry “would not pose a threat to the national security or public safety of the United States,” and the grant would be in the “national interest,” and even attempting this process will impose an unknown period of delay and additional costs with no guarantee of success. Iranian Americans and Iranian nationals seeking to use this procedure do not know to whom to apply for an exception or what documentation to provide. Many people who are denied visas may not have the resources to pursue waivers, even if some form of post-denial appeal becomes available. Indeed, the experiences so far under the policy of excluding Iranian nationals offer little comfort that the waiver process will ameliorate the irreparable harms of this policy.
144. In the wake of the Executive Actions, the legal team at Pars has been inundated with telephone calls, emails, and messages from individuals posing questions and expressing concerns about the Order. Individuals of all legal statuses—dual citizens, lawful permanent residents, visa holders, asylees, refugees, those seeking protected status, Iranian refugee and asylum applicants outside the United States who are unable to enter, as well as those who have been granted refugee status in the United States but whose families remain abroad—have called Pars with anxious questions about themselves or their loved ones. The Senior Director of the Legal Department alone was forced to devote dozens of hours of her time dealing solely to January 27 Executive Order-related issues just the first week after it was issued. Instead of preparing and giving panel presentations, or advising community members in other areas, Pars
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legal staff were forced to present almost exclusively on the Executive Order and its impact on the Iranian-American community and they continue to devote significant time to the Executive Actions to the exclusion of other programming.
145. The drain on Pars’ time and resources has continued with the issuance of the September 24 Proclamation and October Refugee Ban and is certain to continue if and when the September 24 Proclamation is enforced. Pars continues to respond to an overwhelming volume of inquiries, including many email inquiries and in-person questions at events, counsel clients, and produce information for its website and distribution to the community, all at the expense of its regular immigration services.
146. The Executive Actions will undermine many of the central tenets of Pars’ mission if and when it takes effect. The September 24 Proclamation and the October Refugee Ban conflict with Pars’ efforts to elevate individuals in the Iranian-American community to their highest career potential, and impede Pars’ ability to provide social services and classes to immigrants and refugees to achieve this goal. Implementation of the Executive Actions will further hamper Pars’ ability to assist Iranian-Americans with family members seeking to leave Iran (either as immigrants or refugees) in search of more stable employment or reunification with their families in the United States. It is likely that the enforcement and implementation of the September 24 Proclamation will affect the decisions of employers who may be unable to hire or sponsor Iranian visa holders, and may cautiously prefer not to hire Iranian lawful permanent residents and dual citizens. In addition, the September 24 Proclamation and its enforcement will cause individuals with high levels of educational attainment—master’s degree and Ph.D. holders who are applying for H1B or other business or student visas to have their visas denied or not renewed.
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147. The Executive Actions have also undermined Pars’ goal of effectively using the immigration laws to advocate on behalf of immigrants and refugees and to guide individuals through the immigration process. To give just one example, a client of Pars, an Iranian refugee presently in the United States with her daughter, faces indefinite separation from her child’s father, a refugee in Turkey. The October Refugee Ban effectively prohibits the father from entering the United States and has thwarted Pars’ ability to advocate on behalf of, counsel, and assist their client in reunifying with her partner. Nor will Pars be able to help the family as a whole to achieve their highest potential in the United States.
148. The January 27 Executive Order’s ambiguity and the chaos it caused prevented Pars attorneys from being able to provide concrete legal advice and that uncertainty continues and is increased by the September 24 Proclamation and October Refugee Ban. Even very experienced Pars attorneys are unable to give many concrete answers to visa applicants or refugees. It is impossible for these attorneys to inform those who seek their services what to expect with their or their family members’ pending visa and refugee applications, whether they should submit future petitions, whether current visa-holders with single-entry visas should travel outside of the United States for work or pleasure, and whether current visa-holders will be able to renew their visas to continue the lives they had planned in the United States. Legal resources being devoted to the response to the Executive Actions are also limiting the resources available to handle the day to day immigration matters that are a significant component of Pars’ regular work. This is turn may jeopardize certain grant funding the organization receives to provide these services if they fail to hit performance targets tied to those grants.
149. Further, whereas Pars seeks to facilitate the social, economic and cultural integration of Iranians into their communities in the United States, the stigma and discrimination
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that was caused by the Executive Actions continues unabated and has sown fear and anxiety in the Iranian-American community and will exacerbate challenges that immigrants, especially those from primarily Muslim countries, already face in the United States. The uncertainty and feeling among many that they are now second-class citizens, has undermined the citizenship curriculum and instilled fear and loss of faith in the system among the participants, making it difficult to continue this vital work.
150. Since President Trump signed the January 27 Executive Order, IABA has diverted its resources to primarily providing legal assistance and support to the Iranian-American community and Iranian nationals harmed by the Order. The Executive Actions and associated actions of DHS and the State Department have created chaos and legal challenges, requiring IABA to answer hundreds of inquiries and provide guidance and assistance. This has completely overwhelmed the organization’s limited resources and forced IABA to substantially defer all its other work and existing plans in order to respond to the crisis.
151. The Executive Actions have also forced IABA to divert resources to assist refugees. For example, an IABA staffer learned that an Iranian refugee family awaiting safe passage from Turkey to the United States was stranded without accommodation due to the January 27 Executive Order. Using IABA funds, the staffer paid for the family’s accommodations, travel to Istanbul, and plane ticket to the United States.
152. In the wake of the September 24 Proclamation and October Refugee Ban IABA is spending 30–40% of the organization’s resources to respond to this attack on its mission and support its members and the broader community. Due to the vague language in the Executive Actions, the changing policy and legal landscape over the last nine months, and the utterly
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inadequate guidance from government officials, it has been extremely challenging to provide appropriate counseling and advice to individuals in need.
153. The IABA President and Board members have all personally devoted significant time to responding to the Executive Actions, answering calls and emails, developing materials, taking reports and maintaining a database on individuals affected by enforcement of the Executive Actions, providing guidance and assistance to Iranian Americans, legal permanent residents, current visa holders, visa applicants, and refugees, connecting individuals with attorneys, coordinating the organization’s response to the Executive Actions across the country, and working with and coordinating efforts with other bar associations, professional organizations, and state and local authorities. IABA spent money to develop and update its website to respond and defer scheduled fundraising plans. IABA does not know when it will be able to resume its regular activities in support of its members. Since the signing of the September 24 Proclamation, inquiries to IABA have spiked again.
154. IABA has fielded over 600 reports and inquiries from individuals (including refugees) regarding the Executive Action. IABA has received over 100 new inquires just since the September 24 Proclamation was announced, from individuals concerned about pending visa applications and the Proclamation’s impact on fiancé visas for planned weddings, family support needed for impending births, future job prospects and other vital reasons to seek permission to travel or immigrate to the United States. Since January 27, IABA chapters have been on the front lines at airports and responding to emails, calls and social media postings from Iranian-Americans and Iranian nationals affected by the Executive Actions.
155. IABA continues to receive reports from many individuals (including refugees) who, despite the existence of multiple judicial orders enjoining some or all of the January and
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March Executive Orders, were not restored to the status quo. For many Iranian nationals and members of the Iranian-American community, there was already a de facto ban on their ability to obtain immigrant and non-immigrant visas even before the September 24 Proclamation or October Refugee Ban.
156. This includes individuals who had begun the visa application process prior to January 27 but who have not yet obtained visas. IABA has received reports from individuals still in Iran who are awaiting interview dates and from individuals who received dates for their interviews for their visas, and were told their visas were not going to be approved. Visa applicants report extended delays in scheduling visa interviews or difficulty rescheduling appointments cancelled. They report receiving confusing and conflicting information and being subject to improper questioning about their religious beliefs. Others remain in a status known as “administrative processing,” an additional step the State Department sometimes requires. According to the State Department website, administrative processing can take up to 60 days.12 Individuals who had visa applications progressing after courts lifted the current restrictions imposed by the January 27 Executive Order and who have not yet received them will be precluded once the September 24 Proclamation goes into effect.
157. Iranian Americans in the United States, including current visa holders and lawful permanent residents, have reached out to IABA with concerns about traveling outside the United States, even if they are in theory free to do so. Because of the potential for rapidly changing rules, they are fearful of being unable to re-enter the United States if they leave and are choosing to forgo travel necessary for work or family reasons. The reports show how these government
12 U.S. Dep’t of State, “Administrative Processing,” https://travel.state.gov/content/visas/en/ general/administrative-processing-information.html.
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restrictions continue to have a chilling effect on Iranian Americans who are U.S. residents and even citizens and who need to be able to freely leave and return to the United States.
158. As an organization that supports the rule of law and whose members are practicing attorneys and judges, IABA is particularly distressed about reports that the government is flouting valid orders issued by federal judges, that the State Department revoked visas in secret and without notice to affected individuals, and that Iranian Americans who properly followed all procedures necessary to obtain valid permission to enter the United States have faced arbitrary, unjust and discriminatory restrictions on their rights
159. The Executive Actions disrupt PAAIA’s mission of encouraging constructive relations and enhancing mutual understanding between the peoples of the United States and Iran. PAAIA has been receiving inquiries from its membership and Iranian Americans throughout the United States as to whether the enforcement of the Executive Actions will strain relations between the United States and Iran, thereby undermining PAAIA’s mission of promoting greater understanding between the Iranian and American people. Members are concerned that the Executive Actions create a negative stigma on Iranian Americans, directly conflicting with the missions and purposes of PAAIA, which stands for the positive impact of Iranian Americans. These inquiries and concerns which began with the January 27 Executive Order continue, and increased following the announcement of the September 24 Proclamation.
160. PAAIA has expended resources over the last nine months to assist its members who have been adversely affected by the issuance and implementation of the Executive Actions. The September 24 Proclamation, which indefinitely bans travel and immigration has galvanized the community because of the effects on families. PAAIA members with family in Iran are concerned about the likelihood that their family will no longer be able to come to the United
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States, including Iranian-Americans expecting the birth of children who need their parents to come and help, or those who have medical issues and need their family members here with them. PAAIA members with parents who are in the process of getting immigration visas do not know what will happen to those applications now.
161. Enforcement of the Executive Actions caused PAAIA to divert substantial resources to combating the Order’s discriminatory effects, and that diversion continues. Since President Trump signed the January 27 Executive Order and continuing to date, PAAIA has had to divert significant resources to responding to media inquiries and requests about the impact of the Executive Actions on Iranian Americans and their families, providing guidance and educating the public on the impact of the Executive Actions, and developing a strategy for how to respond to them. As just one example, PAAIA scheduled an emergency telephone conference for concerned Iranian Americans with immigration and civil rights lawyers to provide its members and other Iranian Americans information about the Executive Order and how it might impact their lives. PAAIA has also prepared several press releases and informational memoranda for its members concerned about the Executive Order and has been engaging with Members of Congress regarding potential legislative responses. The day to day activities of PAAIA have shifted away from its regular programs and activities towards combating the negative and wrongful effects of the Executive Actions on PAAIA’s members and other Iranian Americans.
162. Defendants’ issuance and implementation of the Executive Actions have forced PAAIA to divert its resources away from its normal programming and activities and towards combating the negative and wrongful effects of the Executive Actions on PAAIA’s members and other Iranian Americans, and that impact has continued to this day. For example, PAAIA has been planning to launch a new fellowship program for Iranian-American youth, and had to delay the
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launch for a number of months. Similarly, the Executive Actions forced PAAIA to postpone an event that was going to be hosted on behalf of an Iranian American running for local office. PAAIA has also been unable to devote adequate staff time to activities such as planning for the organization’s upcoming annual event on Capitol Hill, fundraising for the organization, informational and networking events for members, and electioneering activities for the organization.
163. As a result of the increasing climate of fear and animus stemming from the Executive Actions, PAAIA has become concerned about the increase in hate crime incidents in 2017 targeting Americans of Iranian descent, and organized the release of a statement as well as fundraising efforts to help victims. The statement condemns the rise of hate crimes directed at immigrants as a result of the rise of anti-immigrant rhetoric, including rhetoric leading up to the “Muslim ban.”
164. PAAIA has been in contact with members of the medical community regarding the potential consequences of the Executive Actions on new physician training through residency programs at U.S. hospitals. Every year, graduating medical students apply to the National Resident Matching Program (known as “the match”), where they can obtain essential required additional medical training as residents. Approximately 1/5 of match participants are non U.S. citizens, including graduates of foreign medical programs seeking to train in the United States. The match program assigns individuals to specific slots through a highly competitive interview and application process, taking into account both applicant and program preference.
165. The Executive Actions have disrupted this process by creating disincentives for U.S. medical programs to rank individuals from the affected countries highly. A residency program may not want to risk a slot on an individual who may not be able to obtain a visa to work
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in the United States. This means that U.S. hospitals may lose out on their top ranked choices or
be forced to incorporate considerations other than merit in finding the best match. And any
limitation on merit and quality in competing for positions in residency programs has even larger
implications for U.S. medical care. Iranian doctors and medical students have spoken out
forcefully about the problems the Executive Actions are creating in the match program this year
and in other aspects of medical education and the profession. Ahmed Masri & Mourad H.
Senussi, Trump’s Executive Order on Immigration – Detrimental Effects on Medical Training and
Health Care, New Eng. J. Med. (Feb. 1, 2017); Andrew Joseph & Eric Boodman, Trump’s
immigration order causing ‘havoc’ for medical students awaiting Match Day, Stat News (Feb. 2,
2017).
166. In addition to the Organizational Plaintiffs, the ban will harm the resettlement
agencies that assist refugees, including Lutheran Immigration and Refugee Service. As the Ninth
Circuit noted in its September 7 Order:
[R]esettlement agenc[ies] provide[] pre-arrival services for a formally assured refugee and engages in an intensive process to match the individual to resources even before the refugee is admitted. These efforts, which the formal assurance embodies, evince a bona fide relationship between a resettlement agency and a refugee, and further demonstrate the hardship inflicted on an agency if a refugee is not admitted. Once an agency provides an assurance, but before the refugee arrives in the United States, the agency makes substantial investments in preparing for resettlement. . . . If a refugee does not arrive in the United States, or is delayed in arriving, the agency will lose the money and resources it has already expended in preparing for arrival, including securing rental housing, buying furniture, and arranging for basic necessities.
Resettlement agencies will not receive expected Government reimbursements if a refugee with a formal assurance is not admitted. Each agency receives partial grant funding from the Government for the resettlement services it performs on behalf of each particular refugee covered by an assurance. Resettlement agencies and their affiliates advance these funds, for example, to secure lodging, purchase furniture, clothing and other necessities, and receive reimbursement from the State Department the month after the refugee’s arrival in the United States.
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Resettlement agencies also will face non-economic harms if formally assured refugees are barred from entry. Assisting refugees and providing humanitarian aid are central to the core belief systems of resettlement entities and their employees. Efforts to work on behalf of marginalized and vulnerable populations are undercut when the Government bars from entry formally assured refugees. Resettlement agencies have bona fide relationships with refugees seeking to be admitted to this country and “can legitimately claim concrete hardship if [these refugees are] excluded.” . . . Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted.
2. Individual Plaintiffs 167. Plaintiff Shiva Hissong is an Iranian citizen and lawful permanent resident of the United States. She is a Muslim. Ms. Hissong’s parents reside in Tehran, Iran and her father has been ill with Parkinson’s disease for the past ten years. His condition has significantly deteriorated in the last three to four years. In October 2016, her parents secured a tourist visa appointment at the U.S. Embassy in Yerevan, Armenia. The interviewing officer informed Ms. Hissong’s parents that their visas were being placed in administrative processing, and their application has not been issued since that time. Ms. Hissong’s son was born on November 28, 2016. If and when the September 24 Proclamation takes effect, Ms. Hissong’s parents’ visa applications will be denied. Given her father’s deteriorating health, Ms. Hissong is concerned that he and her mother will not be able to travel to see her and her son in a country outside the United States and Iran in the future, and that she will not be able to host her parents in her home. The Executive Actions have made Ms. Hissong feel as though she can never be at home in the United States, and that she will always be a foreigner or stranger here. 168. Plaintiff Montra Yazdani is a dual citizen of the United States and Iran. She entered the United States in 2001 on a J-visa when her father was invited by the Center for Genetic Eye Diseases at the Cleveland Clinic; while in the United States, he completed groundbreaking research and scientific publications in the field of ophthalmology. When her parents returned to Iran in 2002, Ms. Yazdani and her brother received F visas to study in the United States. Ms.
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Yazdani subsequently obtained her Bachelor’s, J.D., and Master of Laws degrees in the United States, while her brother obtained Bachelor’s and M.D. degrees. They both married U.S. citizens. Ms. Yazdani practices Intellectual Property law at a boutique firm in Washington, DC. Her brother is a neuro-radiologist and has two young children. Since 2002, Ms. Yazdani’s parents have received tourist visas seven times to visit her and her brother in the United States. Ms. Yazdani petitioned for a green card on her parents’ behalf in early 2016. Their immigrant visas were verbally approved at their interview in Abu Dhabi in July 2017. The consular official told Ms. Yazdani’s mother that her visa could be issued immediately, though her father’s required additional administrative processing. Ms. Yazdani’s mother at first chose to wait until her husband’s visa was processed so that the two could be issued at the same time, but fear that the September 24 Proclamation would bar her entry to the United States permanently has caused her to request that her visa be issued as soon as possible. If and when the September 24 Proclamation takes effect, it will prohibit the issuance of Ms. Yazdani’s parents’ immigrant visas. Ms. Yazdani and her brother are deeply saddened at the thought that their parents will be unable to join them and their grandkids in the United States. Ms. Yazdani is distraught because her father made valuable contributions to science when he came to the United States, and she has contributed greatly to the United States over the past sixteen years, yet she will be precluded from bringing her parents here based only on the country of her birth.
169. Plaintiff Sepideh Ghajar is a citizen of Iran and Australia. She is a lawful permanent resident of the United States and currently resides in Mountain View, California. She is the co-founder and chief executive officer of Taygo. After graduating from the University of Tehran with a bachelor’s degree in software engineering, Ms. Ghajar moved to Australia. She came to the United States in 2012 in order to start her own venture, and was responsible for co-
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inventing a new technology platform called LiveTiles. Following LiveTiles’ acquisition, Ms. Ghajar founded Taygo, a Silicon Valley company that currently employs ten people. Because of the extremely demanding nature of Ms. Ghajar’s work, she asked her mother to come stay with her in California. Her mother immediately applied for a B-1/B-2 visa and travelled to Dubai for her visa interview approximately one and a half years ago. After not hearing anything from the American Embassy in Dubai for several months, her mother submitted a second application and again travelled to Dubai in June 2017. Embassy officials told her mother that her second application could not be processed and her first application would have to be renewed, and this process should only take three to four weeks; it has been several months and her mother has still not heard anything from the Embassy, while the website indicates her visa application remains in “processing.” If and when the September 24 Proclamation takes effect, it will prohibit the issuance of a visa to Ms. Ghajar’s motion. Ms. Ghajar fears that her mother may never be able to join her in the United States. She feels discriminated against, and does not understand why the U.S. government is preventing her from being with her mother despite the fact that she has built a company and created jobs in this country.
170. Plaintiff Mohammed Jahanfar is a United States citizen currently residing in Tarzana, California. He is currently employed as an insurance salesman for AAA. Mr. Jahanfar came to the United States in 1987. Shortly after graduating from high school in 1996, he enlisted in the U.S. Navy. He served in the Navy until 1999, when he was honorably discharged as a Seaman (E-3). The Iranian government has refused to renew his Iranian passport since the time he served in the U.S. Navy. Mr. Jahanfar became a U.S. citizen in 2003. On January 13, 2017, Mr. Jahanfar submitted a petition for his fiancée’s K-1 visa. His fiancée is an Iranian citizen currently residing in Tehran, where she is pursuing a master’s degree in international studies,
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English translation, and English studies. The petition was approved and sent to the U.S. embassy in Abu Dhabi on May 23, 2017. On August 15, 2017, the U.S. State Department website showing the status of Mr. Jahanfar’s fiancée’s case was updated to inform them that it was ready for an interview. On September 11, 2017, Mr. Jahanfar and his fiancée traveled to Abu Dhabi for the interview, but the embassy turned them away, and told them to wait for an email from the embassy. Since that date, neither Mr. Jahanfar nor his fiancée nor their immigration lawyer has received any updates or information from the embassy. Mr. Jahanfar fears that if and when the September 24 Proclamation takes effect, it will prohibit the issuance of a visa to his fiancée, and they will be unable to get married and live together in the United States. The September 24 Proclamation makes Mr. Jahanfar feel discriminated against, silenced, and betrayed. He served in the U.S. Navy because he wanted to give back to this country. He never imagined the Government would keep him apart from his loved ones.
171. Plaintiff Mohammad Reza Shaeri is citizen of Iran and a lawful permanent resident of the United States. He currently resides in Lancaster, PA, where he works as an engineer at Advanced Cooling Technologies, Inc. Mr. Shaeri entered the United States in 2010 on an F-1 student visa, and earned a master’s degree and Ph.D. in mechanical engineering from the University of Wisconsin. He received his Green Card in 2014. Mr. Shaeri met his wife, Arezoo, several years ago, and they were married in November 2016. Arezoo is an Iranian citizen, and is currently a Ph.D. student in marketing and advertising in New Zealand (she is scheduled to complete her studies in 2019). Arezoo applied for visas to come to the United States on two occasions, once in April 2017 and once in May 2017. She traveled several hundred miles to Auckland, New Zealand for her visa interviews, each time paying approximately $500 in processing fees and travel and hotel costs. But both of her applications were rejected. As a result,
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Mr. Shaeri applied for an immigrant visa on his wife’s behalf on June 6, 2016; the visa has not yet been issued. He fears that, if and when the September 24 Proclamation takes effect, it will prohibit the issuance of a visa to his wife, and he will have to leave behind his home and the life he has worked so hard to build in order to be with his wife.
172. Plaintiff Reza Zoghi is an Iranian national who fled with his family to Turkey in December 2013 to escape violent political persecution in Iran, including repeatedly being imprisoned and tortured for expressing opposition to the regime. After a lengthy interview and vetting process, UNHCR determined that he, his wife and three-year-old daughter qualify for refugee status, gave them documentation of that approval, and referred then to the USRAP. Mr. Zoghi and his family have successfully completed virtually all the vetting processes for resettlement through USRAP. They have already completed the vetting process, including medical screening (valid at least through October 2017) and cultural orientation. Mr. Zoghi’s wife has a first cousin who resides in the United States. The family has a sponsor, Abolfazl Kowsari—and old friend of Mr. Zoghi—who lives in Minnesota, and they have formal assurances from Lutheran Immigration and Refugee Service, a resettlement agency. All they need are their travel documents. But the Executive Actions put everything on hold. Mr. Zoghi and his family remain in indefinite limbo in Turkey, where he cannot apply for employment and his daughter is not eligible, when of age, to enroll in school.
173. Plaintiff John Doe #1 is an Iranian citizen who entered the United States on an F-1 student visa and is currently residing in New York City. He is in his third year of a Ph.D. program in finance and economics. His wife, who has a Ph.D. in electrical engineering, entered on an F-2 visa for spouses of students. John Doe #1 and his wife flew to Iran to visit family in December 2016. John Doe #1 returned to the United States on or about January 22, 2016, and his wife
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purchased a ticket to fly from Iran to New York on January 28, 2017. As a result of the January 27 Executive Order, John Doe #1’s wife was prevented from boarding either her January 28, 2017 flight or a subsequent January 30, 2017 flight. His wife was not able to return to the United States until February 4, 2017, following the federal court order enjoining enforcement of the January 27 Executive Order. Both his and his wife’s student visas are expired and they are fearful of leaving the United States because they will not be readmitted; as a result, they face separation from their families in Iran. In addition, as a result of the Executive Actions, John Doe #1’s wife will not be able to seek employment because she will be prohibited from adjusting her status to seek work authorization, and she will be unable to pursue her request for legal permanent residence. As a result of the Executive Actions, John Doe #1 and his wife are considering leaving the United States permanently
174. Plaintiff John Doe #9 is a citizen of Iran. He currently resides in Arak, Iran. After dreaming of moving to the United States for many years, John Doe #9 was selected to receive a visa through the 2017 Diversity Immigrant Visa program. John Doe #9 was overjoyed when he was informed that he was a selectee, and immediately made plans to travel to Abu Dhabi, United Arab Emirates for his visa interview, which took place on June 7, 2017. On August 13, 2017, John Doe #9 received an email informing him that, although administrative processing had been completed on his file, he would need to submit proof of a close familial relationship or job offer in the U.S. in order to be exempt from the March 6, 2017 Executive Order. He scrambled to find a job in the United States and was able to do so in two weeks. John Doe #9 submitted proof of his job offer along with his passport to the Embassy in Abu Dhabi on August 29, 2017, but the passport was returned to him with no visa inside on September 4, 2017. Diversity visa winners are given immigrant visas and, as such, appear to be covered by the language in the September 24
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Proclamation banning issuance of immigrant visas to Iranians; Mr. Doe is concerned that if and when the September 24 Proclamation takes effect, it will prohibit the issuance of Mr. Doe’s visa. Mr. Doe fears that he may have lost his chance to move to the United States forever, despite following all the rules and providing all the documentation that was requested of him.
175. Plaintiff John Doe #10 is a United States citizen. His wife is a citizen of Iran and a lawful permanent resident of the United States. They have one daughter, born in June 2017, who is a U.S. citizen. Both John Doe #10 and his wife hold Ph.Ds and are employed as Assistant Professors at a public university in the United States. John Doe’s wife would be in danger if she returned to Iran (she has converted to Christianity, and because they were not the same religion when married, the Iranian government does not recognize their marriage and she is considered to have birthed an illegitimate child). John Doe #10’s in-laws were able to visit the United States in 2015. In November 2016, John Doe #10’s in-laws applied for a tourist visa to visit the United States to be present for the birth of their grandchild, but the first available visa appointment at the U.S. consulate in Dubai was in late April, 2017. Because of the January 27 Executive Order, the U.S. consulate in Dubai canceled the visa interview. Following the injunction of the January 27 Executive Order, the U.S. consulate rescheduled the interview, and John Doe #10’s in-laws had their visa interview in late April 2017; since that time, their visa application has been in “administrative processing.” John Doe #10’s in-laws were unable to be present for the birth of their grandchild because they had not received their visa. If and when the September 24 Proclamation takes effect, John Doe #10 fears his in-laws will be barred from entering the United States and his daughter will never be allowed to meet her grandparents. He is injured by the September 24 Proclamation because it has caused him and his family severe emotional distress
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and heartache. He feels his family is being profiled and punished because of his wife’s nationality.
176. Plaintiff Jane Doe #1 is a dual citizen of the United States and Iran. She is a Muslim. She and her fiancé, who is an Iranian national currently living in Iran, got engaged in October 2015. With the assistance of an attorney, Jane Doe #1 and her fiancé submitted a petition for a K-1 visa and in October 2016, Jane Doe #1 and her fiancé traveled to Abu Dhabi for an immigrant visa interview. A K-1 visa requires that a foreign national marry his or her U.S. citizen petitioner within ninety days of entering the United States. The visa was verbally approved, and Jane Doe #1 and her fiancé were advised that additional administrative processing could take up to six months. Prior to the Executive Orders, Jane Doe #1 and her fiancé had been planning a wedding ceremony in the United States, and had spent thousands of dollars to secure a wedding venue and vendors. As a result of the Executive Actions, they were forced to notify their family and friends that their wedding was cancelled. If and when the September 24 Proclamation takes effect, Jane Doe #1 fiancé’s visa will not be approved, her fiancé will be unable to enter the United States and they will be unable to get married or live together in their house as planned. The Executive Actions have made Jane Doe #1 feel that, despite her service and contributions to the United States as a city and state government employee for years, she doesn’t count for anything.
177. Plaintiff Jane Doe #4 is an Iranian citizen who was granted asylum in the United States in 2016. She is a member of Efran-e-Halgeh, also referred to as the circle of mysticism. She received asylum on the basis of fear of religious persecution. Members of her spiritual group have been killed by Iranian officials and thus, she is unable to return to Iran. Jane Doe #4 has no family in the United States, as almost all of her family lives in Iran. In November 2016, her
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parents applied for a tourist visa and were making travel arrangements to visit her in the United States. Their visa is currently in administrative processing. Under the terms of the September 24 Proclamation, Jane Doe #4’s parents will be unable to obtain a tourist visa and she will separated from them indefinitely. The Executive Actions have made Jane Doe #4 incredibly sad. At times, she even considers going back to Iran—thereby risking her life—in order to be able to see her parents.
178. Plaintiff Jane Doe #8 is an Iranian citizen currently residing with her partner, Jane Doe #9, in Turkey and seeking to be admitted to the United States as a refugee. She grew up in a traditional Muslim household in Iran, but felt that the Muslim community was not accepting of her sexual orientation. While living in Iran, Jane Doe #8 was blackmailed by an acquaintance who threatened to expose her sexual orientation and LGBT activist activities to the Iranian government if she did not marry him. He also raped her. Jane Doe #8 fled to Turkey in 2014. While in Turkey, Jane Doe #8 and her partner live in poverty, barely earning enough money to cover their rent and purchase necessities. After a lengthy interview and vetting process, UNHCR determined their refugee status, gave them documentation of that approval, and referred then to the USRAP. They then completed one interview with the International Catholic Migration Commission (“ICMC”), a State Department contractor that interviews refugees who have been referred for possible resettlement to the United States. When Jane Doe #8 contacted ICMC regarding her second interview on February 8 and 17, she received an email response that the USRAP was suspended for 120 days and that her case status would not change during the suspension period. As a result of the Executive Actions, it is unlikely that Jane Doe #8 will be admitted to the USRAP.
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179. Plaintiff Jane Doe #9 is an Iranian citizen and transgender and LGBT woman currently residing with her partner, Jane Doe #8, in Turkey and seeking to be admitted to the United States as a refugee. She grew up in a traditional Muslim household in Iran. She fled Turkey after being targeted and physically abused by Iranian government officials. She has found it very difficult to find employment as a transgender woman in Turkey and has been fired from many jobs. She was raped while in exile in Turkey but felt that she had no recourse because Turkish police, like much of Turkish society, are transphobic and homophobic. After a lengthy interview and vetting process, UNHCR determined the refugee status of Jane Doe #9 and her partner, gave them documentation of that approval, and referred then to the USRAP. They then completed one interview with ICMC. As a result of the Executive Actions, it is unlikely that Jane Doe #9 will be admitted to the USRAP.
180. Jane Doe #13 is an Iranian citizen and lawful permanent resident of the United States. She is Muslim. Jane Doe #13 was a political activist during the Green Movement in Iran. She arrived in the United States on an F-1 student visa to obtain her graduate degree. After beginning her studies in the U.S., Jane Doe #13 learned that the Iranian government had tried and convicted her in absentia for her previous political activities. As a result, it is not safe for her to return to Iran. She received asylum in the United States in 2011. Her parents obtained tourist visas and visited her in the United States in 2011 and 2014. Jane Doe #13 is now engaged to be married to a U.S. citizen. After her engagement, Jane Doe #13’s parents applied again for a tourist visa to attend the wedding. Their visa appointment was scheduled, but cancelled following the January 27 Executive Order. After the federal court injunction, her parents’ visa appointment was reinstated. Jane Doe #13 provided her parents with far more supporting documentation for their tourist visas than she had in either 2011 or 2014, including letters of invitation from the
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parents of her fiancé. At their visa appointment at the U.S. Consulate in Dubai, Jane Doe #13’s parents informed the consular official that she was an asylee and lawful permanent resident. In response, the consular official became agitated, remarked that Jane Doe #13 “was not in the system,” and asked Jane Doe #13’s parents what religion Jane Doe #13 practiced. When they replied that Jane Doe #13 is Muslim, the consular official denied the tourist visa applications of Jane Doe #13’s parents without explanation. While she was meeting with consular officials, Jane Doe #13’s mother heard a consular official inquire of another couple also applying for a tourist visa what religion their child practiced, and when they responded that their child was a Christian, the tourist visa was granted. If and when the September 24 Proclamation takes effect, Jane Doe #13’s parents will be unable to receive a tourist visa. Jane Doe #13 and her fiancé have been forced to postpone their wedding plans and make significant changes to the wedding ceremony. They have now been forced to search for wedding venues in Europe and requiring her fiancé’s family to travel abroad. She is also distraught by the prospect that the September 24 Proclamation will prevent her parents and other relatives from ever visiting her in the future.
181. Plaintiff Jane Doe #14 is a dual citizen of Iran and the United States. She lives in New York City with her husband, a citizen of Iran and lawful permanent resident of the United States, and is pregnant with their first child. Plaintiff Jane Doe #14 is trained as a classical violaplayer and is currently pursuing her Ph.D. in performing arts. In November 2016, Plaintiff Jane Doe #14 submitted a petition for an immigrant visa for her mother. In late May or early June 2017, Plaintiff Jane Doe #14 sent a letter to the U.S. embassy in Abu Dhabi requesting advising them that she was pregnant and requesting that they expedite the date of her mother’s interview. Plaintiff Jane Doe #14’s mother had her immigrant visa interview at the U.S. embassy in Abu Dhabi on August 28, 2017. Since that time, her mother’s visa has been in “administrative
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processing.” Ms. Doe fears that if and when the September 24 Proclamation takes effect, her mother will be unable to move to the United States and help her care for the baby. Jane Doe #14’s husband works full time, and she does not have any other relatives close by who could help with the baby. She feels discriminated against and depressed because of the September 24 Proclamation.
182. Plaintiff Jane Doe #15 is a dual citizen of Iran and the United States. She holds a top position at an elite company in the biotech field. Although it is difficult for her to take vacation due to the nature of her job, Jane Doe #15 travels to Iran every 1.5 years to see her elderly parents. Jane Doe #15 would like her parents to come live with her in the United States, and applied for an immigrant visa on their behalf in May 2016. Her parents completed their visa interview in August 2017. Jane Doe #15 and her husband began to plan for her parents’ arrival, including by shortening the lease on their apartment so that they could move. Although her mother’s visa has been issued, the visa of Jane Doe #15’s father has not. Ms. Doe fears that if and when the September 24 Proclamation takes effect, her father will not be issued his visa, and her mother will have to choose between traveling to the United States and facing separation from her husband, or remaining in Iran and being separated from her daughter. The Executive Actions have made Jane Doe #15 feel unwanted in the United States and that the United States cannot be her home. Consequently, she has started applying for jobs abroad.
CAUSES OF ACTION COUNT I
(Violation of the First Amendment – Establishment Clause) (Against all Defendants)
183. 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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184. The Establishment Clause of the First Amendment prohibits the government action that has the purpose of preferring one religion over another or discriminating on the basis of religion. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 860–64 (2005).
185. Based on the language of the Executive Actions and President Trump’s own statements, Sections 2 and 3 of the September 24 Proclamation, as well as the October Refugee Ban, seek to disfavor Iran, an overwhelmingly Muslim country, as well as other majority Muslim countries. President Trump specifically stated that he would prevent Muslims from immigrating to the United States, and with the Executive Actions, he did so.
186. The Executive Actions, and the Defendants’ development and implementation of the Executive Actions, violate the Plaintiffs’ rights under the Establishment Clause of the First Amendment.
187. This violation of Plaintiffs’ First Amendment caused by the Executive Actions and Defendants’ issuance and implementation of them, has harmed Plaintiffs.
188. The Executive Actions, and Defendants’ issuance, implementation, and enforcement of them, have forced organizational Plaintiffs to divert resources from their regular activities and have undermined organizational Plaintiffs’ ability to fulfill their missions.
189. Absent injunctive and declaratory relief, the Plaintiffs will continue to suffer harm from the Executive Actions and Defendants’ issuance, implementation, and enforcement of it.
190. Plaintiffs have no adequate or available administrative remedy; in the alternative, any effort to obtain an administrative remedy would be futile.
191. Plaintiffs have no adequate remedy at law. 192. As a result, the Executive Actions violate the Establishment Clause of the First Amendment to the U.S. Constitution and should be set aside.
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COUNT II (Violation of the Fifth Amendment – Equal Protection:
Discrimination on the Basis of Religion) (Against all Defendants)
193. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
194. Plaintiffs who have been granted lawful entry into the United States are entitled to the protections of the Fifth Amendment.
195. Persons who seek to apply for asylum in the United States are entitled to the protections of the Fifth Amendment.
196. Persons outside the United States (including the Plaintiffs who seek refugee status) are entitled to protections under the Fifth Amendment under certain circumstances. See Boumediene v. Bush, 553 U.S. 723 (2008); Ibrahim v. DHS, 669 F.3d 983 (9th Cir. 2012) (holding under Boumediene that a non-U.S. citizen outside the United States may assert an equalprotection challenge to being listed on the no-fly list and being prevented from entering the United States).
197. In issuing and implementing the Executive Actions, Defendants have discriminated against Plaintiffs on the basis of their religion in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment.
198. The Executive Actions were substantially motivated by animus toward Muslims. 199. The Executive Actions have a disparate impact on Muslims. 200. The Executive Actions are intended to favor Christians. 201. Defendants’ numerous public calls for a ban on Muslim immigration demonstrate that the Executive Actions are designed to have virtually exclusive impact on Muslims.
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202. Defendants’ overt statements singling out Muslims for exclusion further reveal invidious discriminatory intent.
203. Defendants’ targeting of Plaintiffs based on religion is not narrowly tailored and serves no compelling state interest.
204. The Executive Actions’ targeting of Plaintiffs based on religion is not rationally related to a legitimate government interest.
205. The Executive Actions’ targeting of Plaintiffs based on religion is not bona fide or legitimate because the Executive Actions are pretextual and based on discriminatory animus. A pretext for discrimination cannot be bona fide, and the desire to discriminate or harm a politically unpopular group cannot constitute a legitimate governmental interest.
206. Defendants’ unconstitutional actions have caused and continue to cause Plaintiffs ongoing harm.
207. The Executive Actions, and Defendants’ implementation and enforcement of them, have forced organizational Plaintiffs to divert resources from their regular activities and have undermined organizational Plaintiffs’ ability to fulfill their missions.
208. Absent injunctive and declaratory relief, the Plaintiffs will continue to suffer harm from the Executive Actions and Defendants’ issuance, implementation and enforcement of it.
209. Plaintiffs have no adequate or available administrative remedy; in the alternative, any effort to obtain an administrative remedy would be futile.
210. Plaintiffs have no adequate remedy at law. 211. As a result, the Executive Actions violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution and should be set aside.
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COUNT III (Violation of the Fifth Amendment – Equal Protection:
Discrimination on the Basis of National Origin) (Against all Defendants)
212. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
213. Plaintiffs who have been granted lawful entry into the United States are entitled to the protections of the Fifth Amendment.
214. Persons who seek to apply for asylum in the United States are entitled to the protections of the Fifth Amendment.
215. Persons outside the United States (including the Plaintiffs who seek refugee status) are entitled to protections under the Fifth Amendment under certain circumstances. See Boumediene v. Bush, 553 U.S. 723 (2008); Ibrahim v. DHS, 669 F.3d 983 (9th Cir. 2012) (holding under Boumediene that a non-U.S. citizen outside the United States may assert an equalprotection challenge to being listed on the no-fly list and being prevented from entering the United States).
216. In issuing and implementing the Executive Actions, Defendants have discriminated against Plaintiffs on the basis of their national origin in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment.
217. The Executive Actions single out nationals of specific countries, including Iran, for exclusion from the United States, regardless of their individual attributes. Plaintiffs and their relatives are excluded solely because they are Iranian nationals.
218. The Executive Actions’ targeting of Plaintiffs based on national origin is not narrowly tailored to support a compelling government interest.
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219. The Executive Actions’ targeting of Plaintiffs based on national origin is not rationally related to a legitimate government interest.
220. The Executive Actions’ targeting of Plaintiffs based on national origin is not bona fide; the Executive Actions are pretextual and based on discriminatory animus. A pretext for discrimination cannot be bona fide, and the desire to discriminate or harm a politically unpopular group cannot constitute a legitimate governmental interest.
221. Defendants’ unconstitutional actions have caused and continue to cause Plaintiffs ongoing harm.
222. The Executive Actions and Defendants’ issuance, implementation, and enforcement of them have forced organizational Plaintiffs to divert resources from their regular activities and have undermined organizational Plaintiffs’ ability to fulfill their missions.
223. Absent injunctive and declaratory relief, the Plaintiffs will continue to suffer harm from the Executive Actions and Defendants’ issuance, implementation, and enforcement of them.
224. Plaintiffs have no adequate or available administrative remedy; in the alternative, any effort to obtain an administrative remedy would be futile.
225. Plaintiffs have no adequate remedy at law. 226. As a result, the Executive Actions violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution and should be set aside.
COUNT IV (Violation of the Fifth Amendment – Due Process)
(Against all Defendants) 227. 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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228. Plaintiffs who are U.S. citizens or who have been granted lawful entry into the United States are entitled to the protections of the Fifth Amendment.
229. Persons who seek asylum in the United States are entitled to the protections of the Fifth Amendment.
230. The Due Process Clause of the Fifth Amendment prohibits the Government from depriving Plaintiffs of their liberty interests without due process of law.
231. In issuing and implementing the Executive Actions, Defendants have failed to provide constitutionally minimum notice and process, in violation of Plaintiffs’ procedural due process rights under the Fifth Amendment.
232. In issuing and implementing the Executive Actions, Defendants have violated the statutory rights, procedures, and protections created by Congress for Plaintiffs.
233. Defendants have acted without any reasonable justification in the service of a legitimate governmental objective, in violation of Plaintiffs’ due process rights under the Fifth Amendment.
234. Because of the prior history of refusing to permit Plaintiffs who are visa holders or lawful permanent residents to travel abroad without a certain ability to re-enter the United States, the Executive Actions have created a chilling effect that deprives Plaintiffs of their protected liberty interest in travel without due process.
235. In preventing Plaintiffs who are U.S. citizens or residents living in the United States and who have family in Iran from visiting their family or enabling their family to visit them, the Executive Actions deprive Plaintiffs of their protected liberty interest in family integrity without due process.
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236. In preventing Plaintiffs who are U.S. citizens married to (or engaged to be married to) Iranian nationals from having their spouses join them in the United States, the September 24 Proclamation infringes on the fundamental right to marry.
237. Defendants’ unlawful actions have caused and continue to cause ongoing harm to Plaintiffs.
238. The Executive Actions, and Defendants’ issuance, implementation, and enforcement of them, have forced organizational Plaintiffs to divert resources from their regular activities and have undermined organizational Plaintiffs’ ability to fulfill their missions.
239. Absent injunctive and declaratory relief, Plaintiffs will continue to suffer harm from the Executive Actions and Defendants’ issuance, implementation, and enforcement of them.
240. Plaintiffs have no adequate or available administrative remedy; in the alternative, any effort to obtain an administrative remedy would be futile.
241. Plaintiffs have no adequate remedy at law. 242. As a result, the Executive Actions violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution and should be set aside.
COUNT V (Violation of the Administrative Procedure Act) (Against all Defendants except Defendant Donald J. Trump) 243. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 244. The Departments of State, Homeland Security, and Justice are “agencies” under the APA. See 5 U.S.C. § 551(1).
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245. Implementing the September 24 Proclamation will require Defendants to act contrary to 8 U.S.C. § 1152(a)(1)(A) by discriminating on the basis of nationality, place of birth, and place of residence in the issuance of immigrant visas.
246. Implementing the October Refugee Ban will require Defendants to act contrary to 8 U.S.C. § 1522(a)(5) and the United States’ obligations under Articles 3 and 33 of the Refugee Convention and 1967 Protocol by discriminating on the basis of nationality.
247. Implementing the September 24 Proclamation will require Defendants to act contrary to regulations, rules, policies, and practices that require individualized determinations regarding eligibility in the processing and revocation of visas, including 22 C.F.R. § 40.6; 22 C.F.R. part 40, subparts B-K; 8 C.F.R. § 205.2; 9 FAM 301.1-2; 9 FAM 403.11-3(B); 9 FAM 403.11-4(A).
248. Implementing the September 24 Proclamation and October Refugee Ban will require Defendants to alter existing rules adopted through notice-and-comment without undertaking a new notice-and-comment process, in violation of the APA’s procedural requirements.
249. Defendants’ implementation of the September 24 Proclamation and October Refugee Ban in violation of the APA will harm Plaintiffs.
250. The September 24 Proclamation, the October Refugee Ban, and Defendants’ implementation and enforcement of these directives, have forced organizational Plaintiffs to divert resources from their regular activities and have undermined organizational Plaintiffs’ ability to fulfill their missions.
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251. Absent injunctive and declaratory relief, the Plaintiffs will continue to suffer harm from the September 24 Proclamation, October Refugee Ban, and Defendants’ implementation and enforcement of them.
252. Plaintiffs have no adequate or available administrative remedy; in the alternative, any effort to obtain an administrative remedy would be futile.
253. Plaintiffs have no adequate remedy at law. 254. This Court accordingly should declare that Defendants’ implementation of the September 24 Proclamation is unlawful and set it aside.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs seek an order and judgment to: (1) Declare Sections 2 and 3(c) of the September 24 Proclamation contrary to the Constitution and laws of the United States; (2) Declare Section 2(c) and 3(c) of the October 24 Executive Order contrary to the Constitution and laws of the United States to the extent those provisions implements the October 23 Memorandum regarding refugees from Muslim-majority countries; (3) Enjoin Defendants from taking any steps to implement or effectuate Sections 2 and 3(c) of the September 24 Proclamation and Sections 2(c) and 3(c) the October 24 Executive Order to the extent that these sections implement the October 23 Memorandum, including but not limited to:
(a) enforcing Sections 2 and 3(c) of the September 24 Proclamation, including at any United States border or point of entry;
(b) applying Sections 2 and 3(c) of the September 24 Proclamation to deny, revoke, delay, suspend, restrict or cancel any immigrant or nonimmigrant visa or refugee status;
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(c) applying Sections 2 and 3(c) of the September 24 Proclamation to delay, suspend or cease immigrant or nonimmigrant visa application or issuance processing;
(d) enforcing the October 24 Executive Order or October 23 Memorandum or applying Sections 2 and 3(c) of the September 24 Proclamation to delay, suspend or cease refugee applicant processing;
(e) applying the October 24 Executive Order or October 23 Memorandum to “prioritize refugee applications” from “non-SAO countries” or “reallocate . . . resources that may have been dedicated to processing nationals” of SAO countries “to process applicants from non-SAO countries.”
(f) applying Sections 2 and 3(c) of the September 24 Proclamation to delay, deny or suspend entry or admission to any person;
(g) applying Sections 2 and 3(c) of the September 24 Proclamation to prohibit any person from applying for or receiving any benefit under the Immigration and Nationality Act of 1965 if receipt is otherwise lawful, including an immigrant or nonimmigrant visa, lawful permanent residence, asylum or refugee status or other adjustment of status;
(h) denying any person subject to the Sections 2 and 3(c) of the September 24 Proclamation access to legal counsel of his or her choice;
(i) applying Sections 2 and 3(c) of the September 24 Proclamation to instruct any airline or other common carrier to deny passage to any person; and
(j) imposing or threatening to impose any financial penalty on any airline or other common carrier for allowing passage to any person covered by Sections 2 and 3(c) of the September 24 Proclamation;
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(4) Enjoin the reinstatement of any requirements contained in or similar to §§ 2(c)-(e), 3, 6(a), and 6(c) of the March 6 Executive Order and §§ 3(c), 5(a)–(c) and 5(e) of the January 27 Executive Order once it is rescinded to effectuate the actions listed above in paragraph (2).
(5) Require Defendants to promptly provide written guidance to employees, contractors and agents of U.S. Customs and Border Protection and any other U.S. government entity necessary to ensure full and timely compliance with all terms of the order to be entered by the Court.
(6) Require Defendants to immediately rescind any guidance, directive, memorandum, or statement interpreting or applying the September 24 Proclamation that conflicts with any term of the order to be entered by the Court.
(7) Require Defendants to immediately and prominently post a copy of the written guidance required under paragraph (4) on government websites including state.gov and uscis.gov.
(8) Require Defendants to promptly update all relevant public guidance, documentation, and FAQs to reflect the terms of the order to be entered by the Court.
(9) Require Defendants to promptly reissue any and all visas physically cancelled as a result of the Executive Actions, to issue any visas that were approved but not issued as a result of the Executive Actions, to issue any visas that have been improperly denied or delayed as a result of the Executive Actions, and to reschedule any consular appointments or interviews cancelled as a result of the Executive Actions.
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Case 1:17-cv-00255-TSC Document 123 Filed 11/03/17 Page 78 of 79 (10) Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. (11) Require Defendants to provide data or information necessary to understand the scope of any implementation of the Executive Actions in addition to steps taken to comply with the Court’s Order. (12) Any other relief necessary to cure the violations or that justice may otherwise require.
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November 3, 2017
Cyrus Mehri (D.C. Bar # 420970) U.W. Clemon (D.D.C. Bar # AL0013) Joanna K. Wasik (D.C. Bar. # 1027916) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW, Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com
Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW, Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org
Hassan Zavareei (D.C. Bar # 456161) TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, DC 20036 (202) 973-0900 (202) 973-0950 (fax) hzavareei@tzlegal.com
Adrienne D. Boyd (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 370 Seventh Street, Suite 4400 Denver, CO 80202 (303) 863-1000 (303) 832-0428 (fax) adrienne.boyd@apks.com

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Sonia Tabriz (D.C. Bar # 1025020) Sally L. Pei (D.C. Bar # 1030194) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com
Christopher M. Odell (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com
Susan S. Hu (pro hac vice) ARNOLD & PORTER
KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 (212) 836-8000 (303) 836-8689 (fax) susan.hu@apks.com
Counsel for Plaintiffs

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 Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al.,
Defendants.

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Case No. 17-cv-0255 (TSC)

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)

)

ORDER

Plaintiffs have filed a Status Report and Request for a Case Management Schedule, in

which they request that the court promptly grant their Motion for Preliminary Injunction (ECF

No. 107), or alternatively, set a case management schedule to resolve their claims expeditiously.

ECF Nos. 135, 136 (Plfs. Status Report). In response, Defendants request a stay of the

proceedings in light of decisions and appellate proceedings in other jurisdictions. ECF No. 137

(Defs. Resp. to Status Report) at 2. Having considered the parties’ arguments, and for the

reasons stated below, the court finds that a temporary stay is warranted, and therefore Plaintiffs’

Request is DENIED.

I. BACKGROUND

Plaintiffs sued in February 2017, seeking a preliminary injunction prohibiting

implementation of Executive Order 13,769 (“E.O.1”), and subsequently of Executive Order No.

13,780 (“E.O.2”), both of which restricted entry into the United States of certain foreign

nationals. This case was stayed between June 20, 2017 and October 12, 2017, while injunctions

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 2 of 8
enjoining certain sections of E.O.2 were under appellate review. ECF Nos. 91, 101. On October 9, 2017, in light of new executive actions by President Trump, Plaintiffs filed an unopposed Motion to Lift the Stay, in which they requested permission to file an amended complaint and to re-file a motion for preliminary injunction. ECF No. 103. The court lifted the stay on October 12, 2017. ECF No. 105.
In their Third Amended Complaint, Plaintiffs contest the legality of President Trump’s September 24, 2017 Proclamation, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States By Terrorists or other Public-Safety Threats” (“September 24 Proclamation”), as well as President Trump’s October 24, 2017 Executive Order, “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities” (“October 24 Executive Order”) and its accompanying October 23, 2017 Memorandum (“October 23 Memorandum”) (collectively, “October Refugee Order”). ECF No. 123 (Compl.) ¶ 1. The September 24 Proclamation indefinitely suspends the entry of certain foreign nationals, including Iranians. Id. The relevant sections of the October 23 Memorandum provide for a 90-day threat assessment and review of refugees from 11 countries, including Iran. Id. ¶¶ 9, 126. During the 90-day review period, the State Department and Department of Homeland Security prioritized refugee applications from countries not subject to the 90-day review. Id. ¶¶ 9, 128. Plaintiffs allege that these executive actions violate the First and Fifth Amendments of the Constitution, as well as the Administrative Procedure Act. Compl. ¶¶ 183– 254.
Plaintiffs request that the court enter a preliminary injunction against Sections 2 and 3(c) of the September 24 Proclamation and the October Refugee Order. ECF No. 107 at 2, ECF No.
2

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 3 of 8
117 at 6–7. Alternatively, Plaintiffs request that the court set a case management schedule, to include a brief discovery period and motions for summary judgment. Plfs. Status Report at 6. II. LEGAL STANDARD
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. American Co., 299 U.S. 248, 254 (1936). Therefore, “[a] trial court has broad discretion to stay all proceedings in an action pending the resolution of independent proceedings elsewhere.” Canady v. Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 74 (D.D.C. 2002) (citing Landis, 299 U.S. at 254). However, a court may not “order[] a stay ‘of indefinite duration in the absence of a pressing need.’” Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 732 (D.C. Cir. 2012) (quoting Landis, 299 U.S. at 255). In considering a stay, courts must “weigh competing interests and maintain an even balance between the court’s interests in judicial economy and any possible hardship to the parties.” Id. at 732–33 (citations and quotation marks omitted). III. ANALYSIS
a. September 24 Proclamation On October 17, 2017, the District of Maryland issued a nationwide injunction against enforcement of certain provisions of Section 2 of the September 24 Proclamation, except as to individuals lacking a credible claim of a bona fide relationship with a person or entity within the United States. See Int’l Refugee Ass. Proj. (IRAP) v. Trump, 265 F. Supp. 3d 570, 631–32 (D. Md. 2017). Three days later, on October 20, 2017, the District of Hawaii also entered a nationwide injunction of certain provisions of Section 2 of the Proclamation. ECF No. 390,
3

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 4 of 8
Hawaii v. Trump, No. 17-00050 (D. Haw. Oct. 20, 2017) (order entering preliminary injunction). The government appealed both injunctions.
On December 4, 2017, the U.S. Supreme Court stayed both preliminary injunctions, pending disposition of the government’s appeals and the government’s petitions for writs of certiorari, if such writs were sought. Trump v. IRAP, 138 S. Ct. 542, 542 (2017); Trump v. Hawaii, 138 S. Ct. 542, 542 (2017). On December 22, 2017, the Ninth Circuit affirmed in part the District of Hawaii’s preliminary injunction, narrowing its scope to enjoin implementation only as to those individuals with a bona fide relationship with a person or entity in the United States. Hawaii v. Trump, 878 F.3d 662, 701-03 (9th Cir. 2017). On February 15, 2018, the Fourth Circuit affirmed the District of Maryland’s preliminary injunction. IRAP v. Trump, No. 17-2231, 2018 WL 894413, at *20 (4th Cir. Feb. 15, 2018), as amended (Feb. 28, 2018). Both Circuits stayed their decisions “[i]n light of the Supreme Court’s order[s] staying” the injunctions. Hawaii, 878 F.3d at 702; see also IRAP, 2018 WL 894413, at *20 (“[W]e stay our decision today pending the Supreme Court’s decision.”). On January 19, 2018, the Supreme Court granted the government’s petition for a writ of certiorari in Hawaii. Trump v. Hawaii, No. 17-965, 2018 WL 324357, at *1 (Jan. 19, 2018).1
Given this timeline of events, there are two reasons why a stay pending the result of the Supreme Court’s decision in Hawaii appears to be the most appropriate path for conserving the court’s resources and adjudicating the case in the most efficient manner possible. First, the Supreme Court has explicitly ordered a stay—in full—of the IRAP and Hawaii injunctions enjoining the September 24 Proclamation. IRAP, 138 S. Ct. at 542; Hawaii, 138 S. Ct. at 542.
1 The Plaintiffs in IRAP filed a petition for writ of certiorari on February 23, 2018. Petition for Writ of Certiorari, IRAP v. Trump, No. 17-1194, 2018 WL 1084310 (Feb. 23, 2018).
4

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 5 of 8
In doing so, the Court has already decided that the September 24 Proclamation shall remain enforceable while injunctions enjoining its enforceability are under appellate review. Nonetheless, Plaintiffs request that this court enter yet another injunction enjoining the Proclamation. The court finds it neither prudent nor efficient to do so given the Supreme Court’s December 4 stay orders.
Second, there is substantial overlap between the legal issues in this case and those before the Supreme Court. Plaintiffs argue that their complaint includes “several legal claims that have not been advanced by other litigants.” Plfs. Status Report at 3. However, the plaintiffs in Hawaii, like Plaintiffs here, also brought claims for violations of the First and Fifth Amendments of the Constitution and the Administrative Procedure Act. Hawaii, 878 F.3d at 674–75 (“The third amended complaint includes statutory claims for violations of the INA, the Religious Freedom Restoration Act, and the Administrative Procedure Act, as well as constitutional claims for violations of the Establishment and Free Exercise Clauses of the First Amendment and the equal protection guarantees of the Fifth Amendment’s Due Process Clause.”); see also ECF No. 381, Third Amended Complaint, Hawaii v. Trump, No. 17-00050 (D. Haw. Oct. 15, 2017) ¶¶ 128–32, 142–46, 152–58, 165–69, 170–76. Plaintiffs in this case advance only one claim not advanced in Hawaii—that Defendants violated the due process clause of the Fifth Amendment by failing to provide “constitutionally minimum notice and process.” Compl. ¶¶ 227–42.
Plaintiffs also claim that they are “advancing entirely different legal theories than the statutory claim at issue in the Ninth Circuit decision.” ECF No. 138 at 1–2. While the Ninth Circuit did review statutory claims not before this court, the Circuit did find, as Plaintiffs argue in this case, that the Proclamation “runs afoul of § 1152(a)(1)(A)’s prohibition on nationalitybased discrimination.” Hawaii, 878 F.3d at 697. Moreover, the Supreme Court has ordered the
5

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 6 of 8
Hawaii parties to brief whether the September 24 Proclamation violates the Establishment Clause—a violation Plaintiffs have themselves asserted. See Trump v. Hawaii, 2018 WL 324357, *1 (Jan. 19, 2018); Brief in Opposition to Petition for Writ of Certiorari, Trump v. Hawaii, No. 17-965, 2018 WL 417995 (Jan. 12, 2018). Therefore, the Supreme Court’s decision in Hawaii will likely impact and inform this court’s decision as to the legality and enforceability of the September 24 Proclamation, and consequently, the court declines to decide Plaintiffs’ motion for a preliminary injunction prior to the Supreme Court’s decision.
b. October Refugee Order On December 23, 2017, the Western District of Washington entered a nationwide injunction barring enforcement of certain provisions of the October 23 Memorandum. Doe v. Trump, No. 17-0178, 2017 WL 6551491, at *26 (W.D. Wash. Dec. 23, 2017). In relevant part, the injunction enjoins and restrains the enforcement of “provisions of the [October 23 Memorandum] that suspend or inhibit, including through the diversion of resources, the processing of refugee applications or the admission into the United States of refugees from SAO countries,” except with respect to individuals without a bona fide relationship to a person or entity within the United States.2 Id. Although Plaintiffs assert that the relief granted through this injunction is “similar, but narrower, than the relief Plaintiffs requested,” Plfs. Status Report at 3, the injunction in Doe appears to provide Plaintiffs much of the relief they seek. See ECF No. 117 at 6–7 (“Plaintiffs request that Defendants also be enjoined from suspending refugee processing or barring admittance of Iranians and the eight other predominantly Muslim countries referenced in the October 23 Memorandum.”); see also Compl. at 74 (requesting an injunction
2 Security Advisory Opinion (SAO) countries include Iran, Libya, Somalia, Syria, Yemen, Egypt, Mali, Iraq, Sudan, South Sudan, and North Korea. See ECF No. 117 at 2–3; Compl. ¶ 127.
6

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 7 of 8
enjoining the enforcement of the October 24 Executive Order or October 23 Memorandum “to delay, suspend or cease refugee applicant processing” and enjoining the prioritization of refugee applications from non-SAO countries). Accordingly, the Western District of Washington’s injunction calls into question whether the harms Plaintiffs allege are actually imminent or certain—a prerequisite for a preliminary injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The parties have appealed the injunction in Doe. Because the validity of this injunction will impact this court’s analysis, the court finds that the most appropriate course of action is to temporarily stay resolution of Plaintiffs’ motion for an injunction enjoining the October Refugee Order pending the outcome of the appeal in Doe.
c. Hardship to Plaintiffs Plaintiffs argue that they “have been unable to join the national litigation currently under way on this issue, and the D.C. Circuit and Supreme Court [have] been deprived of the robust record in this case.” Plfs. Status Report at 6. But Plaintiffs’ understandable desire to litigate their claims does not outweigh this court’s interests in judicial economy and its desire to avoid needless, duplicative litigation. This is especially true given the current status of the September 24 Proclamation—which the Supreme Court has permitted to go into effect—and the October 23 Memorandum—which is enjoined nationwide. IV. CONCLUSION For the reasons stated, this action is temporarily STAYED. This stay is not indefinite, but will last only until current appellate proceedings concerning the September 24 Proclamation and October Refugee Order are complete. The court also denies without prejudice Plaintiffs’ pending Motion for a Preliminary Injunction. If circumstances change during the pendency of
7

Case 1:17-cv-00255-TSC Document 143 Filed 03/02/18 Page 8 of 8 the appellate proceedings, Plaintiffs may file a motion to lift the stay and may then re-file a motion for a preliminary injunction. Date: March 2, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
8

 
 Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 1 of 39
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−00255−TSC

TYPE−D

PARS EQUALITY CENTER et al v. TRUMP et al Assigned to: Judge Tanya S. Chutkan Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 02/08/2017 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

PARS EQUALITY CENTER

represented by Amelia Friedman MEHRI & SKALET, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822−5100 Email: afriedman@findjustice.com TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri MEHRI & SKALET, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822−5100 Fax: (202) 822−4997 Email: cmehri@findjustice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik MEHRI & SKALET, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822−5100 Fax: (202) 822−4997 Email: jwasik@findjustice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942−5316 Fax: (202) 942−5999 Email: john.freedman@apks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, DC 20005

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 2 of 39
(202) 662−8325 Email: jgreenbaum@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942−5563 Fax: (202) 942−5999 Email: stanton.jones@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sally Pei ARNOLD & PORTER KAY SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 (202) 942−5000 Email: sally.pei@apks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen K. Wirth ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942−6739 Fax: (202) 942−5999 Email: stephen.wirth@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne D. Boyd ARNOLD & PORTER KAYE SCHOLER LLP 370 Seventeenth Street Suite 4400 Denver, CO 80202 (303) 863−2393 PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Odell ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 713−576−2400 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan S. Hu CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012 (212) 614−6464 Email: shu@ccrjustice.org

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 3 of 39

PRO HAC VICE ATTORNEY TO BE NOTICED

U.W Clemon MEHRI & SKALET, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822−5100 Fax: (202) 822−4997 Email: clemonu@bellsouth.net ATTORNEY TO BE NOTICED

Plaintiff
IRANIAN AMERICAN BAR ASSOCIATION

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 4 of 39

Plaintiff
NATIONAL IRANIAN AMERICAN COUNCIL TERMINATED: 10/12/2017

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
U.W Clemon (See above for address) ATTORNEY TO BE NOTICED
represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan S. Hu (See above for address)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 5 of 39

PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 6 of 39

Plaintiff
ALI ASAEI TERMINATED: 10/12/2017

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff SHIVA HISSONG

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 7 of 39

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
OMID MOGHIMI TERMINATED: 10/12/2017

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 8 of 39

ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
JOHN DOE 1−8, #5 on behalf of himself and his minor child BABY DOE #1

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 9 of 39

John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
JANE DOE 1−7

represented by Amelia Friedman (See above for address) TERMINATED: 10/19/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna K. Wasik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) LEAD ATTORNEY

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 10 of 39

ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Pei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen K. Wirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne D. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Odell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Susan S. Hu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MOHAMMAD REZA SHAERI TERMINATED: 01/31/2018

represented by Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

John Arak Freedman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff REZA ZOGHI

represented by Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

U.W Clemon (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 11 of 39

Plaintiff MONTRA YAZDANI
Plaintiff SEPIDEH GHAJAR
Plaintiff MOHAMMAD JAHANFAR

John Arak Freedman (See above for address) ATTORNEY TO BE NOTICED
represented by Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
U.W Clemon (See above for address) ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) ATTORNEY TO BE NOTICED
represented by Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
U.W Clemon (See above for address) ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) ATTORNEY TO BE NOTICED
represented by Cyrus Mehri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
U.W Clemon (See above for address) ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
DONALD J. TRUMP In his official capacity as President of the United States

represented by Brad P. Rosenberg US DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH PO Box 883 20 Massachusetts Ave., NW Washington, DC 20530 (202) 514−3374 Fax: (202) 616−8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 12 of 39

Defendant U.S. DEPARTMENT OF HOMELAND SECURITY
Defendant U.S. CUSTOMS AND BORDER PROTECTION

Daniel Stephen Garrett Schwei U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−8693 Fax: (202) 616−8470 Email: daniel.s.schwei@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hashim M. Mooppan U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 307−5906 Email: hashim.mooppan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 (202) 305−8902 Fax: (202) 616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hashim M. Mooppan (See above for address)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 13 of 39

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. DEPARTMENT OF JUSTICE

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
KEVIN K. MCALEENAN In his official capacity as Acting Commissioner of Customs and Border Protection

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
REX W. TILLERSON In his official capacity as Secretary of State

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 14 of 39

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
DANA J. BOENTE In his official capacity as Acting Attorney General of the United States TERMINATED: 10/12/2017

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. DEPARTMENT OF STATE

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
JOHN KELLY In his Official Capacity as Secretary of the Department of Homeland Security TERMINATED: 10/12/2017

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ELAINE DUKE in her official capacity as Acting Secretary of the Department of Homeland Security

represented by Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 15 of 39

JEFFERSON BEAUREGARD SESSIONS, III in his official capacity as Acting Attorney General of the United States

represented by Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant DANIEL R. COATS

represented by Daniel Stephen Garrett Schwei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hashim M. Mooppan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant HIAS

represented by James E. B. Bobseine DECHERT, LLP 1900 K Street NW Suite 1200 Washington, DC 20006 (202) 261−3350 Email: james.bobseine@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant NATIONAL URBAN LEAGUE

represented by Alan Robert Kabat Bernabei & Kabat, PLLC 1400 − 16th Street NW Suite 500 Washington, DC 20036−2223 (202) 745−1942 Fax: (202) 745−2627 Email: Kabat@bernabeipllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynne Ann Bernabei Bernabei & Kabat, PLLC 1400 − 16th Street NW Suite 500 Washington, DC 20036−2223 (202) 745−1942 Fax: (202) 745−2627 Email: bernabei@Bernabeipllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC

represented by Karla McKanders VANDERBILT UNIVERSITY SCHOOL

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 16 of 39

OF LAW 131 21st Ave S Nashville, TN 37203 (248) 807−1909 Email: karla.mckanders@law.howard.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant OXFAM AMERICA, INC.

represented by Richard Bress LATHAM & WATKINS LLP 555 11th Street, NW Suite 1000 Washington, DC 20004−1300 (202) 637−2137 Fax: (202) 637−2201 Email: richard.bress@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Mortweet LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 (650) 326−4600 Fax: (650) 463−2600 TERMINATED: 07/25/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
AMERICANS UNITED FOR SEPARATION OF CHURCH

represented by Richard B. Katskee AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Legal Department 1310 LL Street, NW Suite 200 Washington, DC 20005 (202) 466−3234 Fax: (202) 466−3353 Email: katskee@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian B. Gillers SOUTHERN POVERTY LAW CENTER 150 East Ponce de Leon Avenue Suite 340 Decatur, GA 30030 (404) 521−6700 Fax: 404−221−5857 Email: gillian.gillers@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kristi L. Graunke SOUTHERN POVERTY LAW CENTER 150 East Ponce de Leon Avenue Suite 340 Decatur, GA 30030 (404) 521−6700 Fax: 404−221−5857 Email: kristi.graunke@splcenter.org

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 17 of 39

PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus VICTOR WILLIAMS

represented by VICTOR WILLIAMS AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Avenue Bethesda, MD 20816 301−951−9045 PRO SE

Amicus
AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CENTER FOR CONSTITUTIONAL RIGHTS

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CENTER FOR REPRODUCTIVE RIGHTS

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MISSISSIPPI CENTER FOR JUSTICE

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
NATIONAL CENTER FOR LESBIAN RIGHTS

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
NATIONAL COALITION ON BLACK CIVIC PARTICIPATION

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 18 of 39

Amicus SOUTHERN COALITION FOR SOCIAL JUSTICE
Amicus WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS
Amicus FORMER NATIONAL SECURITY OFFICIALS
Amicus NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
Amicus FOUNDATION FOR THE CHILDREN OF IRAN

represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan M. Freiman WIGGIN & DANA LLP One Century Tower P.O. Box 1832 New Haven, CT 06508−1832 (203) 498−4400 Fax: (203) 782−2889 Email: jfreiman@wiggin.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alan Robert Kabat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynne Ann Bernabei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Burgess GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 (202) 346−4000 Email: bburgess@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alicia Rubio GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000 Fax: ( 617) 523−1231 Email: arubio@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
David R. Fox GOODWIN PROCTER, LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 19 of 39

Email: dfox@goodwinlaw.com TERMINATED: 06/14/2017

Eileen Morrison GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000 Fax: (617) 523−1231 Email: emorrison@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua M. Daniels GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000 Fax: (617) 523−1231 Email: jdaniels@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Nicholas K. Mitrokostas GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000 Fax: (617) 523−1231 Email: nmitrokostas@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

William B. Brady GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570−1000 Fax: (617) 523−1231 Email: wbrady@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus CHILDREN OF PERSIA

represented by Brian Burgess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Rubio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David R. Fox (See above for address) TERMINATED: 06/14/2017

Eileen Morrison (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua M. Daniels

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 20 of 39

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nicholas K. Mitrokostas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

William B. Brady (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
IRANIAN ALLIANCES ACROSS BORDERS

represented by Brian Burgess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Rubio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David R. Fox (See above for address) TERMINATED: 06/14/2017

Eileen Morrison (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua M. Daniels (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nicholas K. Mitrokostas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

William B. Brady (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus HUMAN RIGHTS FIRST

represented by Andrew McHie Lacy SIMPSON, THACHER & BARTLETT LLP 900 G Street, NW 9th Floor Washington, DC 20001 (202) 636−5505 Fax: (202) 220−7702 Email: alacy@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan C. Turner SIMPSON, THACHER & BARTLETT

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 21 of 39

LLP 425 Lexington Avenue New York, NY 10017 212−455−2000 Fax: 212−455−2502 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
KIND KIDS IN NEED OF DEFENSE

represented by Andrew McHie Lacy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan C. Turner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus TAHIRIH JUSTICE CENTER

represented by Andrew McHie Lacy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan C. Turner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 02/08/2017 02/08/2017
02/08/2017
02/08/2017 02/08/2017 02/08/2017

# Docket Text
2 SEALED ORDER re 1 MOTION for Order filed by JANE DOE, JOHN DOE.(This document is SEALED and only available to authorized persons.)Signed by Judge Emmet G. Sullivan on 2/8/17.(ztd) (Entered: 02/09/2017)
3 COMPLAINT against DANA J. BOENTE, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE, JOHN KELLY ( Filing fee $ 400, receipt number 4616082898) filed by SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, ALI ASAEI, JANE DOE, JOHN DOE, PARS EQUALITY CENTER, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL. (Attachments: # 1 Civil Cover Sheet)(td) (Entered: 02/09/2017)
4 NOTICE OF RELATED CASE by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. Case related to Case No. 17−cv−243 TSC. (td) (Entered: 02/09/2017)
5 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (td) (Entered: 02/09/2017)
6 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PARS EQUALITY CENTER (td) (Entered: 02/09/2017)
7 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL IRANIAN AMERICAN COUNCIL (td) (Entered: 02/09/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 22 of 39

02/08/2017 02/08/2017
02/09/2017 02/09/2017 02/09/2017
02/10/2017 02/13/2017 02/13/2017 02/14/2017 02/14/2017 02/16/2017
02/16/2017
02/16/2017
02/17/2017

8 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by IRANIAN AMERICAN BAR ASSOCIATION (td) (Entered: 02/09/2017)
9 MOTION for Preliminary Injunction by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (td) (Entered: 02/09/2017)
10 NOTICE of Appearance by Robert Stanton Jones on behalf of All Plaintiffs (Jones, Robert) (Entered: 02/09/2017)
11 NOTICE of Appearance by Stephen K. Wirth on behalf of All Plaintiffs (Wirth, Stephen) (Entered: 02/09/2017)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− U.W. Clemon, :Firm− Mehri & Skalet, PLLC, :Address− 1250 Connecticut Avenue NW, Suite 300, Washington, DC 20036. Phone No. − (202) 822−5100. Fax No. − (202) 822−4997 Filing fee $ 100, receipt number 0090−4837468. Fee Status: Fee Paid. by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Declaration Declaration of U.W. Clemon in Support of Motion for Admission Pro Hac Vice)(Mehri, Cyrus) (Entered: 02/09/2017)
13 NOTICE of Appearance by Daniel Stephen Garrett Schwei on behalf of All Defendants (Schwei, Daniel) (Entered: 02/10/2017)
MINUTE ORDER: Defendants' Response to 9 Plaintiffs' Motion for Preliminary Injunction due 2/17/2017. Plaintiffs' Reply due 2/22/2017. A hearing is hereby set for 2/28/2017 at 10:30 a.m. in Courtroom 2. Signed by Judge Tanya S. Chutkan on 2/13/2017. (lctsc2) (Entered: 02/13/2017)
Set/Reset Deadlines/Hearings: Defendants' Response to 9 Plaintiffs' Motion for Preliminary Injunction is due by 2/17/2017; Plaintiffs' Reply is due by 2/22/2017; A hearing is set for 2/28/2017 at 10:30 a.m. in Courtroom 2 before Judge Tanya S. Chutkan. (jth) (Entered: 02/13/2017)
14 NOTICE of Appearance by Amelia Friedman on behalf of All Plaintiffs (Friedman, Amelia) (Main Document 14 replaced on 2/15/2017) (ztd). (Entered: 02/14/2017)
15 NOTICE of Appearance by Joanna K. Wasik on behalf of All Plaintiffs (Wasik, Joanna) (Main Document 15 replaced on 2/15/2017) (ztd). (Entered: 02/14/2017)
16 Emergency MOTION to Stay Existing Deadlines Pending Issuance of a New Executive Order by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 02/16/2017)
MINUTE ORDER granting in part 16 Defendants' motion to stay the preliminary injunction briefing schedule. The parties are ORDERED to file a joint status report by 5:00 p.m. on 2/22/2017 providing the court with (1) an update as to whether a new Executive Order has been issued or is forthcoming and (2) the parties' jointly proposed updated briefing schedule. The court will order a new briefing schedule thereafter. Signed by Judge Tanya S. Chutkan on 2/16/2017. (lctsc2) (Entered: 02/16/2017)
Set/Reset Deadlines: By 5:00 PM on 2/22/2017 the parties are Ordered to file a Joint Status Report providing the court with (1) an update as to whether a new Executive Order has been issued or is forthcoming and (2) the parties' jointly proposed updated briefing schedule. The court will order a new briefing schedule thereafter. (jth) (Entered: 02/16/2017)
MINUTE ORDER: Granting in part and denying in part 12 Motion for Admission Pro Hac Vice. Plaintiffs' counsel U.W. Clemon may be heard in open court, but may not file papers in this court until such time as he has submitted his application to the

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 23 of 39

02/21/2017 02/22/2017
02/22/2017
02/23/2017 03/01/2017 03/01/2017 03/02/2017 03/02/2017
03/02/2017
03/02/2017 03/02/2017 03/02/2017 03/02/2017

District of Columbia Bar. See Local Civil Rule 83.2(c)(2) (An attorney who engages in the practice of law from an office located in the District of Columbia must be a member of the District of Columbia Bar AND the Bar of this Court to file papers in this Court.). Upon submission of the application, attorney Clemon may file a renewed motion (without paying an additional fee), at which time the court will remove the prohibition against filing papers in this court. Signed by Judge Tanya S. Chutkan on 2/17/17. (DJS) (Entered: 02/17/2017)
17 NOTICE of Appearance by Sally Pei on behalf of All Plaintiffs (Pei, Sally) (Entered: 02/21/2017)
18 Joint STATUS REPORT by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 02/22/2017)
MINUTE ORDER: In light of 18 the parties' joint status report, it is hereby ORDERED that Defendants' Response to 9 Plaintiffs' Motion for Preliminary Injunction is due 3/2/2017, and Plaintiffs' Reply is due 3/7/2017. A hearing is hereby set for 3/13/2017 at 3:00 p.m. in Courtroom 2. Signed by Judge Tanya S. Chutkan on 2/22/2017. (lctsc2) (Entered: 02/22/2017)
Set/Reset Deadlines/Hearings: Response to motion for preliminary injunction due by 3/2/2017. Reply due by 3/7/2017. Motion Hearing set for 3/13/2017 at 03:00 PM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 02/23/2017)
19 MOTION for Leave to File Brief of Amici Curiae by AMERICANS UNITED FOR SEPARATION OF CHURCH (Attachments: # 1 Text of Proposed Order Proposed order, # 2 Exhibit Proposed amicus brief)(Katskee, Richard) (Entered: 03/01/2017)
20 MOTION for Leave to File Amicus Curiae Brief by HIAS (Attachments: # 1 Exhibit Proposed Order Regarding HIAS' Motion, # 2 Exhibit Proposed Amicus Brief)(Bobseine, James) (Entered: 03/01/2017)
MINUTE ORDER granting 19 AMERICANS UNITED FOR SEPARATION OF CHURCH Motion for Leave to File Amicus Brief; 20 HIAS Motion for Leave to File Amicus Briefs. Amicus briefs shall be filed by 3/7/2017. Signed by Judge Tanya S. Chutkan on 3/2/2017. (lctsc2) Modified on 4/3/2017 (DJS). (Entered: 03/02/2017)
21 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kristi L. Graunke, :Firm− Southern Poverty Law Center, :Address− 1989 College Ave. NE, Atlanta, GA 30317. Phone No. − 404−521−6700. Fax No. − 404−221−5857 Filing fee $ 100, receipt number 0090−4861533. Fee Status: Fee Paid. by AMERICANS UNITED FOR SEPARATION OF CHURCH (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Katskee, Richard) (Entered: 03/02/2017)
22 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Gillian B. Gillers, :Firm− Southern Poverty Law Center, :Address− 1989 College Ave. NE, Atlanta, GA 30317. Phone No. − 404−521−6700. Fax No. − 404−221−5857 Filing fee $ 100, receipt number 0090−4861560. Fee Status: Fee Paid. by AMERICANS UNITED FOR SEPARATION OF CHURCH (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Katskee, Richard) (Entered: 03/02/2017)
23 AMICUS BRIEF In Support of Motion for Preliminary Injunction 9 by AMERICANS UNITED FOR SEPARATION OF CHURCH. (td) Modified text on 3/2/2017 (td). (Entered: 03/02/2017)
24 AMICUS BRIEF In Support of Motion for Preliminary Injunction 9 by HIAS. (td) Modified on 3/2/2017 (td). (Entered: 03/02/2017)
25 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by HIAS ; (See docket entry no. 24 to view document.) (td) (Entered: 03/02/2017)
26 Memorandum in opposition to re 9 MOTION for Preliminary Injunction filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 24 of 39

03/02/2017 03/04/2017 03/04/2017 03/06/2017 03/06/2017 03/06/2017 03/08/2017 03/10/2017 03/14/2017 03/15/2017
03/15/2017
03/15/2017

PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit A − Email Correspondence, # 2 Text of Proposed Order)(Schwei, Daniel) (Entered: 03/02/2017)
27 NOTICE of Appearance by Brad P. Rosenberg on behalf of All Defendants (Rosenberg, Brad) (Entered: 03/02/2017)
MINUTE ORDER: Granting 21 Motion for Leave to Appear Pro Hac Vice. Attorney Kristi L. Graunke is hereby admitted pro hac vice to appear in this matter on behalf of amici Americans United for Separation of Church and State and the Southern Poverty Law Center. Signed by Judge Tanya S. Chutkan on 3/4/17. (DJS) (Entered: 03/04/2017)
MINUTE ORDER: Granting 22 Motion for Leave to Appear Pro Hac Vice. Attorney Gillian B. Gillers is hereby admitted pro hac vice to appear in this matter on behalf of amici Americans United for Separation of Church and State and the Southern Poverty Law Center. Signed by Judge Tanya S. Chutkan on 3/4/17. (DJS) (Entered: 03/04/2017)
28 NOTICE of Appearance by Jon M. Greenbaum on behalf of All Plaintiffs (Greenbaum, Jon) (Entered: 03/06/2017)
29 NOTICE of New Executive Order by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Exhibit A − New Executive Order)(Schwei, Daniel) (Entered: 03/06/2017)
MINUTE ORDER: Upon consideration of 29 Defendants' Notice regarding the issuance of a new Executive Order, the briefing schedule and hearing set for 3/13/2017 are hereby VACATED. The parties are ordered to file a joint status report setting forth their proposal for moving forward with this case by 3/10/2017. Signed by Judge Tanya S. Chutkan on 3/6/2017. (lctsc2) (Entered: 03/06/2017)
Set/Reset Deadlines: Joint Status Report due by 3/10/2017. (tb) (Entered: 03/08/2017)
30 Joint STATUS REPORT by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 03/10/2017)
32 MOTION for Leave to File Amicus Curiae Raising Political Question Nonjusticiability from Professor Victor Williams of the America First Lawyers Association in support of President Donald J. Trump by VICTOR WILLIAMS (Attachments: # 1 Exhibit Amicus Brief)(td) (Entered: 03/15/2017)
31 MOTION to Amend/Correct 3 Complaint,, and for Leave to Add Additional Pseudonymous Plaintiffs, by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Exhibit A (Amended Complaint), # 2 Text of Proposed Order (Proposed Order))(Freedman, John) (Entered: 03/15/2017)
33 ORDER granting 31 Plaintiffs' Motion to Amend/Correct. Plaintiffs are ordered to file their Amended Complaint in a new docket entry by 3/17/2017. It is further ordered that Plaintiffs' Motion for Preliminary Injunction is due by 3/17/2017, Defendants' Response is due by 3/28/2017, and Plaintiffs' Reply is due by 4/4/2017. A hearing is hereby set for 4/13/2017 at 2:00 p.m. in Courtroom 2. Signed by Judge Tanya S. Chutkan on 3/15/2017. (lctsc2) (Main Document 33 replaced on 3/15/2017) (ztb). (Entered: 03/15/2017)
Set/Reset Deadlines: Amended Pleadings due by 3/17/2017. Preliminary Injunction Motion due by 3/17/2017. Response due by 3/28/2017. Reply due by 4/4/2017. Motion Hearing set for 4/13/2017 at 02:00 PM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 03/15/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 25 of 39

03/15/2017 03/15/2017 03/16/2017 03/17/2017 03/23/2017 03/23/2017
03/27/2017 03/27/2017 03/28/2017 03/28/2017
03/28/2017

34 AMENDED COMPLAINT against All Defendants filed by SHIVA HISSONG, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, JANE DOE, PARS EQUALITY CENTER, OMID MOGHIMI, IRANIAN AMERICAN BAR ASSOCIATION, ALI ASAEI, JOHN DOE, NATIONAL IRANIAN AMERICAN COUNCIL.(Freedman, John) (Entered: 03/15/2017)
35 MOTION for Preliminary Injunction by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Freedman, John) (Entered: 03/15/2017)
36 Joint MOTION for Briefing Schedule by ALI ASAEI, JANE DOE, JOHN DOE, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Text of Proposed Order)(Freedman, John) (Entered: 03/16/2017)
MINUTE ORDER: Finding as moot 9 Motion for Preliminary Injunction in light of the recently filed 35 Motion for Preliminary Injunction. Signed by Judge Tanya S. Chutkan on 3/11/17. (DJS) (Entered: 03/17/2017)
37 REQUEST FOR SUMMONS TO ISSUE filed by SHIVA HISSONG, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, JANE DOE, PARS EQUALITY CENTER, OMID MOGHIMI, IRANIAN AMERICAN BAR ASSOCIATION, ALI ASAEI, JOHN DOE, NATIONAL IRANIAN AMERICAN COUNCIL.(Wirth, Stephen) (Entered: 03/23/2017)
38 MOTION for Leave to File BRIEF AS AMICI CURIAE by AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, SOUTHERN COALITION FOR SOCIAL JUSTICE, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS (Attachments: # 1 Text of Proposed Order, # 2 Proposed Brief)(zrdj) (Entered: 03/24/2017)
39 SUMMONS (1) Issued Electronically as to U.S. DEPARTMENT OF STATE. (td) (Entered: 03/27/2017)
40 First MOTION for Leave to File Amici Curiae Brief by Former National Security Officials (Attachments: # 1 Exhibit Brief of Former National Security Officials as Amici Curiae in Support of Plaintiffs)(Freiman, Jonathan) (Entered: 03/27/2017)
41 MOTION for Leave to TO JOIN AMICI CURIAE BRIEF by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NATIONAL URBAN LEAGUE (Attachments: # 1 Text of Proposed Order)(zrdj) (Entered: 03/28/2017)
42 MOTION for Leave to File Amici Curiae Brief by FOUNDATION FOR THE CHILDREN OF IRAN, CHILDREN OF PERSIA, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Proposed Brief as Amici Curiae, # 3 LCvR 7.1 Certificate of Disclosure by the Foundation for the Children of Iran, # 4 LCvR 7.1 Certificate of Disclosure by Children of Persia, # 5 LCvR 7.1 Certificate of Disclosure by Iranian Alliances Across Borders)(Fox, David) (Entered: 03/28/2017)
43 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nicholas K. Mitrokostas, :Firm− Goodwin Procter LLP, :Address− 100 Northern Avenue, Boston, Massachusetts 02210. Phone No. − 619.570.1000. Fax No. − 619.523.1231 Filing fee $ 100, receipt number 0090−4891760. Fee Status: Fee Paid. by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Declaration of Nicholas K. Mitrokostas, # 2 Text of Proposed Order)(Fox, David) (Entered: 03/28/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 26 of 39

03/28/2017 03/28/2017 03/28/2017 03/28/2017 03/28/2017
03/28/2017
03/28/2017 03/28/2017

44 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− William B. Brady, :Firm− Goodwin Procter LLP, :Address− 100 Northern Avenue, Boston, Massachusetts 02210. Phone No. − 617.570.1000. Fax No. − 617.523.1231 Filing fee $ 100, receipt number 0090−4891808. Fee Status: Fee Paid. by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Declaration of William B. Brady, # 2 Text of Proposed Order)(Fox, David) (Entered: 03/28/2017)
45 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Joshua M. Daniels, :Firm− Goodwin Procter LLP, :Address− 100 Northern Avenue, Boston, Massachusetts 02210. Phone No. − 617.570.1000. Fax No. − 617.523.1231 Filing fee $ 100, receipt number 0090−4891872. Fee Status: Fee Paid. by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Declaration of Joshua M. Daniels, # 2 Text of Proposed Order)(Fox, David) (Entered: 03/28/2017)
46 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alicia Rubio, :Firm− Goodwin Procter LLP, :Address− 100 Northern Avenue, Boston, Massachusetts 02210. Phone No. − 617.570.1000. Fax No. − 617.523.1231 Filing fee $ 100, receipt number 0090−4891899. Fee Status: Fee Paid. by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Declaration of Alicia Rubio, # 2 Text of Proposed Order)(Fox, David) (Entered: 03/28/2017)
47 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Eileen L. Morrison, :Firm− Goodwin Procter LLP, :Address− 100 Northern Avenue, Boston, Massachusetts 02210. Phone No. − 617.570.1000. Fax No. − 617.523.1231 Filing fee $ 100, receipt number 0090−4891920. Fee Status: Fee Paid. by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS (Attachments: # 1 Declaration of Eileen L. Morrison, # 2 Text of Proposed Order)(Fox, David) (Entered: 03/28/2017)
48 NOTICE of Appearance by Alan Robert Kabat on behalf of AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, NATIONAL URBAN LEAGUE, SOUTHERN COALITION FOR SOCIAL JUSTICE, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS (Kabat, Alan) (Entered: 03/28/2017)
49 Amended MOTION for Leave to File Amicus Brief by AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, SOUTHERN COALITION FOR SOCIAL JUSTICE, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Amended Amicus Brief)(Kabat, Alan) (Entered: 03/28/2017)
50 Memorandum in opposition to re 35 MOTION for Preliminary Injunction filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit A − Joint Letter to President, # 2 Exhibit B − DHS Q&As, # 3 Exhibit C − State Guidance, # 4 Exhibit Sarsour v. Trump Slip Opinion (E.D. Va.), # 5 Text of Proposed Order)(Schwei, Daniel) (Entered: 03/28/2017)
51 MOTION for Leave to File Amicus Curiae Brief by Karla Mari McKanders (Attachments: # 1 Memorandum in Support Amicus Brief)(McKanders, Karla) (Entered: 03/28/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 27 of 39

03/29/2017 03/29/2017 03/31/2017 03/31/2017
03/31/2017
03/31/2017 03/31/2017
03/31/2017 03/31/2017 03/31/2017

52 NOTICE of Appearance by Jonathan M. Freiman on behalf of FORMER NATIONAL SECURITY OFFICIALS (Freiman, Jonathan) (Entered: 03/29/2017)
53 MOTION for Leave to File Amicus Curiae Brief by HIAS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Bobseine, James) (Entered: 03/29/2017)
54 MOTION to Continue Hearing Until Following Week by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 03/31/2017)
MINUTE ORDER granting Motions to File Amicus briefs: 32 VICTOR WILLIAMS; 38 AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, SOUTHERN COALITION FOR SOCIAL JUSTICE, and WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS; 40 Former National Security Officials; 41 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE and NATIONAL URBAN LEAGUE; 42 FOUNDATION FOR THE CHILDREN OF IRAN, CHILDREN OF PERSIA and IRANIAN ALLIANCES ACROSS BORDERS; 49 Amended (see 38 ); 51 Karla Mari McKanders ; 53 HIAS. All amicus briefs must be filed as separate docket entries by 4/4/2017. Any additional motions for leave to file amicus briefs must be filed by 4/3/2017. Signed by Judge Tanya S. Chutkan on 3/31/2017. (lctsc2) Modified on 4/3/2017 (DJS). (Entered: 03/31/2017)
55 AMICUS BRIEF filed by AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, NATIONAL CENTER FOR LESBIAN RIGHTS, MISSISSIPPI CENTER FOR JUSTICE, CENTER FOR REPRODUCTIVE RIGHTS, SOUTHERN COALITION FOR SOCIAL JUSTICE, CENTER FOR CONSTITUTIONAL RIGHTS, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW by WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS. (Bernabei, Lynne) Modified on 4/4/2017 to correct docket text (jf). (Entered: 03/31/2017)
56 AMICUS BRIEF by VICTOR WILLIAMS. (zrdj) (Entered: 04/03/2017)
57 AMICUS BRIEF by AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, SOUTHERN COALITION FOR SOCIAL JUSTICE, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS. (zrdj) (Entered: 04/03/2017)
58 AMICUS BRIEF by FORMER NATIONAL SECURITY OFFICIALS. (zrdj) (Entered: 04/03/2017)
59 AMICUS BRIEF by CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS. (zrdj) (Entered: 04/03/2017)
60 AMICUS BRIEF by AMERICAN−ARAB ANTI−DISCRIMINATION COMMITTEE, CENTER FOR CONSTITUTIONAL RIGHTS, CENTER FOR REPRODUCTIVE RIGHTS, CHICAGO LAWYERS COMMITTEE FOR CIVIL RIGHTS, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, MISSISSIPPI CENTER FOR JUSTICE, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL COALITION ON BLACK CIVIC PARTICIPATION,

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 28 of 39

03/31/2017 03/31/2017 03/31/2017 03/31/2017 03/31/2017 04/03/2017
04/03/2017 04/03/2017
04/03/2017
04/03/2017 04/03/2017 04/03/2017
04/03/2017 04/04/2017

WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS. (zrdj) (Entered: 04/03/2017)
61 AMICUS BRIEF by HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC. (zrdj) (Entered: 04/03/2017)
62 AMICUS BRIEF by HIAS. (zrdj) (Entered: 04/03/2017)
63 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by FOUNDATION FOR THE CHILDREN OF IRAN (zrdj) (Entered: 04/03/2017)
64 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CHILDREN OF PERSIA (zrdj) (Entered: 04/03/2017)
65 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by IRANIAN ALLIANCES ACROSS BORDERS (zrdj) (Entered: 04/03/2017)
MINUTE ORDER granting 54 Motion to Continue. The hearing previously scheduled for 4/14/2017 is hereby VACATED and RESCHEDULED for 4/21/2017 at 2:00 p.m. in Courtroom 2. During this hearing, the court will also hear arguments for the pending preliminary injunction motion in Universal Muslim Ass'n of Am. et al. v. Trump et al. (17−cv−0537). Signed by Judge Tanya S. Chutkan on 4/3/2017. (lctsc2) (Entered: 04/03/2017)
Set/Reset Hearings: Motion Hearing reset for 4/21/2017 at 02:00 PM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 04/03/2017)
MINUTE ORDER: Granting 43 Motion for Leave to Appear Pro Hac Vice. Attorney Nicholas Konstantinos Mitrokostas is hereby admitted pro hac vice to appear in this matter on behalf of amici The Foundation of the Children of Iran, Children of Persia, and Iranian Alliances Across Borders. Signed by Judge Tanya S. Chutkan on 3/4/17. (DJS) (Entered: 04/03/2017)
MINUTE ORDER: Granting 44 45 46 47 Motions for Leave to Appear Pro Hac Vice. Attorneys William B. Brady, Joshua M. Daniels, Alicia Rubio, and Eileen Louise Morrison are hereby admitted pro hac vice to appear in this matter on behalf of amici The Foundation of the Children of Iran, Children of Persia, and Iranian Alliances Across Borders. Signed by Judge Tanya S. Chutkan on 3/4/17. (DJS) (Entered: 04/03/2017)
66 MOTION to Intervene Amicus Curiae Brief by HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC (Attachments: # 1 Appendix Supplemental Signatories to Amicus Brief)(McKanders, Karla) (Entered: 04/03/2017)
67 NOTICE of Appearance by Andrew McHie Lacy on behalf of Human Rights First, KIND (Kids in Need of Defense), Tahirih Justice Center (Lacy, Andrew) (Entered: 04/03/2017)
68 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alan C. Turner, :Firm− Simpson Thacher & Bartlett, LLP, :Address− 425 Lexington Avenue, New York, NY 10017. Phone No. − 212−455−2000. Fax No. − 212−455−2502 Filing fee $ 100, receipt number 0090−4899586. Fee Status: Fee Paid. by Human Rights First, KIND (Kids in Need of Defense), Tahirih Justice Center (Attachments: # 1 Declaration of Alan C. Turner in support, # 2 Text of Proposed Order)(Lacy, Andrew) (Entered: 04/03/2017)
69 MOTION for Leave to File Brief as Amici Curiae in support of Plaintiffs' Motion for Preliminary Injunction by Human Rights First, KIND (Kids in Need of Defense), Tahirih Justice Center (Attachments: # 1 Text of Proposed Order, # 2 Proposed Brief)(Lacy, Andrew) (Entered: 04/03/2017)
MINUTE ORDER denying 66 Howard University School of Law Civil Rights Clinic's motion to intervene, but granting leave to file amicus brief; granting 69 Motion for Leave to File amicus brief. All amicus briefs must be filed as separate docket entries no later than 11:59 p.m. tonight, 4/4/2017. Signed by Judge Tanya S. Chutkan on 4/4/2017. (lctsc2) (Entered: 04/04/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 29 of 39

04/04/2017
04/04/2017 04/04/2017 04/04/2017 04/04/2017
04/05/2017 04/06/2017
04/07/2017
04/07/2017
04/10/2017 04/17/2017 04/18/2017 04/18/2017 04/20/2017

MINUTE ORDER granting 36 Joint Motion for Briefing Schedule. Defendants' Answer or Motion to Dismiss shall be due no later than 15 days following this court's Order on 35 Plaintiffs' preliminary injunction motion. If Defendants move for dismissal, Plaintiffs' Opposition shall be due within 21 days, and Defendants' Reply shall be due 10 days after the Opposition is filed. Signed by Judge Tanya S. Chutkan on 4/4/2017. (lctsc2) (Entered: 04/04/2017)
70 ENTERED IN ERROR.....AMICUS BRIEF by FORMER NATIONAL SECURITY OFFICIALS. (jf) Modified on 4/4/2017 (jf). (Entered: 04/04/2017)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 70 Amicus Brief was entered in error as a duplicate to 58 (jf) (Entered: 04/04/2017)
71 AMICUS BRIEF by HUMAN RIGHTS FIRST, KIND, TAHIRIH JUSTICE CENTER. (jf) (Entered: 04/04/2017)
72 REPLY to opposition to motion re 35 MOTION for Preliminary Injunction filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 04/04/2017)
74 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF STATE served on 3/28/2017 (td) (Entered: 04/06/2017)
73 MOTION Request to Offer Live Testimony at the Preliminary Injunction Hearing by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Mehri, Cyrus) (Entered: 04/06/2017)
75 Memorandum in opposition to re 73 MOTION Request to Offer Live Testimony at the Preliminary Injunction Hearing filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Schwei, Daniel) (Entered: 04/07/2017)
MINUTE ORDER granting 73 Plaintiffs' Motion to Present Live Testimony in Support of their Preliminary Injunction Motion. A hearing is hereby set for 4/18/2017 at 2:00 p.m. in Courtroom 2. The court will not set a time limit for witness testimony, though Plaintiffs are reminded that testimony should be as concise as possible and should not be needlessly cumulative. Signed by Judge Tanya S. Chutkan on 4/7/2017. (lctsc2) (Entered: 04/07/2017)
Set/Reset Hearings: Motion Hearing set for 4/18/2017 at 02:00 PM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 04/10/2017)
76 NOTICE Regarding Live Testimony by IRANIAN AMERICAN BAR ASSOCIATION, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Wasik, Joanna) (Entered: 04/17/2017)
MINUTE ORDER: Granting 68 Motion for Leave to Appear Pro Hac Vice. Attorney Alan C. Turner is hereby admitted pro hac vice to appear in this matter on behalf of amici Human Rights First, KIND (Kids in Need of Defense) and Tahirih Justice Center. Signed by Judge Tanya S. Chutkan on 4/18/17. (DJS) (Entered: 04/18/2017)
Minute Entry: Evidentiary Hearing held on 4/18/2017 before Judge Tanya S. Chutkan regarding 35 the motion for preliminary injunction: Plaintiff's witnesses: Babak Yousefzadeh and Leila Austin. Motion heard and taken into consideration. (Court Reporter Lisa Foradori) (tb) (Entered: 04/19/2017)
MINUTE ORDER: Parties are directed to limit their arguments at the 4/21/2017 hearing to 45 minutes per side. Plaintiffs in this case and in UMAA et al. v. Trump et al. (17−cv−537) will share the allotted 45 minutes and should coordinate to avoid unnecessarily repetitive arguments. Plaintiffs will have time for rebuttal following Defendants' arguments. Signed by Judge Tanya S. Chutkan on 4/20/2017. (lctsc2)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 30 of 39

04/21/2017
04/21/2017 04/24/2017 04/25/2017 04/25/2017 04/25/2017 04/27/2017 04/28/2017

(Entered: 04/20/2017)
MINUTE ORDER: Plaintiffs are directed to file a supplemental brief on the following three questions: (1) Is there any restriction on a judge's ability to issue a nationwide injunction on the provisions of the Order that have already been enjoined, and if not, what factors should guide the court's discretion in weighing whether such a duplicative injunction is in the public interest?; (2) If the court intends to issue injunctive relief specific to the individual plaintiffs, what would be the scope of that injunction and what authority does the court have to issue it?; (3) What is the authority for the court to issue the proposed injunctive relief in Section 2 of the Pars Proposed Preliminary Injunction (with particular focus on 2(e)) and Sections 4−9 of the UMAA Proposed Preliminary Injunction? Plaintiffs' single Supplemental Brief should be no more than 12 pages and is due by 4/27/2017. Defendants are to file a Response of no more than 12 pages by 5/2/2017. Defendants are also directed to attach a table listing all other preliminary injunction motions filed against Executive Order 13,780 and indicating whether they have been stayed or remain pending. Plaintiffs are to file a Reply of no more than 6 pages by 5/5/2017. Signed by Judge Tanya S. Chutkan on 4/21/2017. (lctsc2) (Entered: 04/21/2017)
Minute Entry: Motion Hearing held on 4/21/2017 before Judge Tanya S. Chutkan: re 35 MOTION for Preliminary Injunction filed by SHIVA HISSONG, ALI ASAEI, JOHN DOE, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, JANE DOE, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION; Motion heard and taken under advisement. SEE MINUTE ORDER ENTERED ON 04/21/17. (Court Reporter Pat Kaneshiro−Miller) (tb) (Entered: 04/24/2017)
Set/Reset Deadlines: Plaintiff's supplemental brief due by 4/27/2017. Defendant's response due by 5/2/2017. Plaintiff's reply due by 5/5/2017. (tb) (Entered: 04/24/2017)
77 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Adrienne Boyd, :Firm− Arnold & Porter Kaye Scholer LLP, :Address− Suite 4400, 370 Seventh Street, Denver, CO 80202−1370. Phone No. − +1 303.863.2393. Fee Status: No Fee Paid. by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Freedman, John) (Entered: 04/25/2017)
78 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Susan S. Hu, :Firm− Arnold & Porter Kaye Scholer LLP, :Address− 250 West 55th Street, New York, NY 10019. Phone No. − (212) 836−7430. Fee Status: No Fee Paid. by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Freedman, John) (Entered: 04/25/2017)
79 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Christopher M. Odell, :Firm− Arnold & Porter Kaye Scholer LLP, :Address− 700 Louisiana Street, Suite 1600, Houston, TX 77002. Phone No. − 713−576−2400. Fee Status: No Fee Paid. by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Freedman, John) (Entered: 04/25/2017)
80 SUPPLEMENTAL MEMORANDUM to re 35 MOTION for Preliminary Injunction filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Attachments: # 1 Exhibit A)(Freedman, John) (Entered: 04/27/2017)
81 TRANSCRIPT OF PROCEEDINGS before Judge Tanya S. Chutkan held on April 21, 2017; Page Numbers: 1−107. Date of Issuance:April 28, 2017. Court Reporter/Transcriber Patricia A Kaneshiro−Miller, Telephone number 202−354−3243,

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 31 of 39

05/02/2017
05/05/2017 05/11/2017 05/11/2017 05/22/2017
05/22/2017 05/23/2017 05/25/2017

Tape Number: Patricia_Kaneshiro−Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 5/19/2017. Redacted Transcript Deadline set for 5/29/2017. Release of Transcript Restriction set for 7/27/2017.(pk) (Entered: 04/28/2017)
82 RESPONSE re Order,,,,, 80 Supplemental Memorandum, Regarding Preliminary Relief filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Declaration of Jeremy A. Cornforth, # 2 List of Other Cases Seeking Preliminary Relief Against Executive Order No. 13,780)(Rosenberg, Brad) (Entered: 05/02/2017)
83 REPLY re 82 Response to Document, filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 05/05/2017)
84 ORDER temporarily staying resolution of 35 Plaintiffs' motion for preliminary injunction. See Order for more details. Signed by Judge Tanya S. Chutkan on 5/11/2017. (lctsc2) (Entered: 05/11/2017)
Set/Reset Deadlines: Answer/Dispositive Motion due by 5/26/2017. Response to Dispositive Motion due by 6/16/2017. Reply to Dispositive Motion due by 6/26/2017. (tb) (Entered: 05/11/2017)
85 MOTION for Extension of Time to File Motions to Dismiss by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 05/22/2017)
MINUTE ORDER granting 85 Defendants' Motion for Extension of Time to File Motion to Dismiss. Defendants' Motion is due on 6/9/2017. Plaintiffs' Opposition is due on 6/30/2017. Defendants' Reply is due on 7/14/2017. Signed by Judge Tanya S. Chutkan on 5/22/2017. (lctsc2) (Entered: 05/22/2017)
Set/Reset Deadlines: Dispositive Motion due by 6/9/2017. Response to Dispositive Motion due by 6/30/2019. Reply to Dispositive Motion due by 7/14/2017. (tb) (Entered: 05/23/2017)
86 TRANSCRIPT OF PROCEEDINGS before Judge Tanya S. Chutkan held on 4−18−17; Page Numbers: 115. Date of Issuance:5−25−17. Court Reporter/Transcriber Lisa M. Foradori, Telephone number 202−354−3269, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 32 of 39

06/02/2017
06/07/2017 06/07/2017 06/14/2017 06/14/2017 06/20/2017 06/28/2017 06/28/2017

located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 6/15/2017. Redacted Transcript Deadline set for 6/25/2017. Release of Transcript Restriction set for 8/23/2017.(Foradori, Lisa) (Entered: 05/25/2017)
87 Emergency MOTION to Stay Proceedings Pending Supreme Court Review by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Exhibit A − IRAP Cert Petition, # 2 Exhibit B − IRAP Stay Application, # 3 Exhibit C − Hawaii Stay Application, # 4 Exhibit D − Stay Order in Doe (WDWash), # 5 Exhibit E − Stay Order in IRAP (DMd), # 6 Exhibit F − Stay Order in Sarsour (EDVa), # 7 Exhibit G − Stay Order in Hawaii (DHaw), # 8 Supplement UMAA Meet−and−Confer Correspondence, # 9 Supplement Pars Meet−and−Confer Correspondence, # 10 Text of Proposed Order)(Schwei, Daniel) (Entered: 06/02/2017)
MINUTE ORDER: The 6/9/2017 deadline for Defendants' Motion to Dismiss is hereby vacated pending the court's decision on 87 Defendants' emergency motion to stay proceedings. In the event the court denies Defendants' motion, the court will issue a new briefing schedule. Signed by Judge Tanya S. Chutkan on 6/7/2017. (lctsc2) (Entered: 06/07/2017)
88 RESPONSE re 87 Emergency MOTION to Stay Proceedings Pending Supreme Court Review filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 06/07/2017)
89 NOTICE OF SUBSTITUTION OF COUNSEL by David R. Fox on behalf of CHILDREN OF PERSIA, FOUNDATION FOR THE CHILDREN OF IRAN, IRANIAN ALLIANCES ACROSS BORDERS; Brian T. Burgess is substituting for David R. Fox. (Fox, David) (Entered: 06/14/2017)
90 REPLY to opposition to motion re 87 Emergency MOTION to Stay Proceedings Pending Supreme Court Review filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit H − Stay Order (Arab Am Civil Rights League, EDMich), # 2 Exhibit I − Stay Order (Ozinga v HHS), # 3 Exhibit J − Stay Order (Triune v HHS))(Schwei, Daniel) (Entered: 06/14/2017)
91 ORDER granting 87 Defendants' Motion to Stay and denying without prejudice 35 Plaintiffs' Motion for Preliminary Injunction. Within seven days of the Supreme Courts final decisioneither denial of the petition or ruling on the meritsthe parties shall jointly submit a proposed schedule for proceeding with these cases. (See Order for more details). Signed by Judge Tanya S. Chutkan on 6/20/2017. (lctsc2) Modified on 6/21/2017 (DJS). (Entered: 06/20/2017)
92 MOTION to Lift Stay , MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Memorandum in Support, # 2 Declaration of Jane Doe #8, # 3 Declaration of Jane Doe #9, # 4 Exhibit LR 7(m) Correspondence, # 5 Text of Proposed Order)(Freedman, John) (Entered: 06/28/2017)
MINUTE ORDER: The court finds the Plaintiffs have not demonstrated immediate and irreparable injury that would necessitate a temporary restraining order. In accordance with the court's previous order and with Local Civil Rule 65.1(c), the government's opposition is due 7/5/17. The court will notify the parties after filing of the government's response whether the court will hold a hearing. Signed by Judge Tanya S. Chutkan on 6/28/2017. (lctsc3) (Entered: 06/28/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 33 of 39

06/28/2017 07/04/2017
07/05/2017 07/05/2017 07/05/2017 07/05/2017
07/05/2017
07/07/2017
07/13/2017
07/13/2017 07/13/2017 07/13/2017 07/13/2017

Set/Reset Deadlines: The government's opposition is due 7/5/17. (jth) (Entered: 06/28/2017)
93 SUPPLEMENTAL MEMORANDUM to re 92 MOTION to Lift Stay MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Attachments: # 1 Declaration of Reza Zoghi (Exhibit 4), # 2 Exhibit 4−A)(Freedman, John) (Entered: 07/04/2017)
MINUTE ORDER: Granting 77 79 Motions for Leave to Appear Pro Hac Vice. Adrienne D. Boyd and Christopher M. Odell are hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 7/5/17. (DJS) (Entered: 07/05/2017)
MINUTE ORDER: Denying without prejudice 78 Motion for Leave to Appear Pro Hac Vice by Susan S. Hu for failing to comply with Local Civil Rule 83.2(d)(5) which requires that the applicant's declaration set forth "the number of times the attorney has been admitted pro hac vice in this Court within the last two years." Signed by Judge Tanya S. Chutkan on 7/5/17. (DJS) (Entered: 07/05/2017)
94 MOTION for Leave to File Amicus Curiae Brief by OXFAM AMERICA, INC. (Attachments: # 1 Proposed Amicus Brief, # 2 Corporate Disclosure Statement, # 3 Text of Proposed Order)(Bress, Richard) (Entered: 07/05/2017)
95 Memorandum in opposition to re 92 MOTION to Lift Stay MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/05/2017)
96 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Christopher Mortweet, :Firm− LATHAM & WATKINS LLP, :Address− 140 Scott Drive, Menlo Park, CA 94025. Phone No. − (650) 326−4600. Fax No. − (650) 463−2600 Filing fee $ 100, receipt number 0090−5019580. Fee Status: Fee Paid. by OXFAM AMERICA, INC. (Attachments: # 1 Exhibit A − Declaration of Christopher Mortweet, # 2 Exhibit B − Text of Proposed Order)(Bress, Richard) (Entered: 07/05/2017)
97 REPLY to opposition to motion re 92 MOTION to Lift Stay MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,. (Freedman, John) (Entered: 07/07/2017)
98 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Susan S. Hu, :Firm− Arnold & Porter Kaye Scholer LLP, :Address− 250 West 55th Street, New York, NY 10019. Phone No. − (212) 836−7430. Fax No. − (212) 836−8689 Fee Status: No Fee Paid. by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Freedman, John) (Entered: 07/13/2017)
Filing fee Paid: $ 100, receipt number 4616084183 in regards to Docket Number 77 . (md) (Entered: 07/13/2017)
Filing fee Paid: $ 100, receipt number 4616084184 in regards to Docket Number 78 . (md) (Entered: 07/13/2017)
Filing fee Paid: $ 100, receipt number 4616084185 in regards to Docket Number 79 . (md) (Entered: 07/13/2017)
Filing fee in the amount of $ 100.00, receipt number 4616085982 re 98 MOTION for Leave to Appear Pro Hac Vice (zrdj) (Entered: 07/14/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 34 of 39

07/14/2017 07/14/2017 07/19/2017
07/19/2017 07/25/2017 07/27/2017 08/07/2017 10/09/2017 10/11/2017 10/12/2017
10/12/2017 10/12/2017

MINUTE ORDER: Granting 98 Motion for Leave to Appear Pro Hac Vice. Susan S. Hu is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 7/14/17. (DJS) (Entered: 07/14/2017)
99 NOTICE OF SUPPLEMENTAL AUTHORITY by ALI ASAEI, JANE DOE, JOHN DOE, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Exhibit)(Freedman, John) (Entered: 07/14/2017)
100 NOTICE OF SUPPLEMENTAL AUTHORITY by DANA J. BOENTE, JOHN KELLY, KEVIN K. MCALEENAN, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Supplemental Authority: Supreme Court Order)(Rosenberg, Brad) (Entered: 07/19/2017)
101 ORDER denying 92 Plaintiffs' Motion to Lift the Stay and for a Preliminary Injunction. It is FURTHER ORDERED that 94 Oxfam America, Inc.'s Motion for Leave to File an Amicus Brief is DENIED. Signed by Judge Tanya S. Chutkan on 7/19/2017. (lctsc2) (Entered: 07/19/2017)
VACATED PURSUANT TO MINUTE ORDER FILED 7/27/2017.....MINUTE ORDER: Granting 96 Motion for Leave to Appear Pro Hac Vice. Christopher Mortweet is hereby admitted pro hac vice to appear in this matter on behalf of amicus curiae Oxfam America, Inc. Signed by Judge Tanya S. Chutkan on 7/25/17. (DJS) Modified on 7/28/2017 (znmw). (Entered: 07/25/2017)
MINUTE ORDER: In light of the court's order denying Oxfam America, Inc.'s motion to file an amicus brief, the 07/25/2017 Minute Order granting pro hac admission to Oxfam counsel Christopher Mortweet is hereby VACATED. Signed by Judge Tanya S. Chutkan on 7/27/17. (DJS) (Entered: 07/27/2017)
102 NOTICE of Change of Address by Alan Robert Kabat (Kabat, Alan) (Entered: 08/07/2017)
103 MOTION to Lift Stay and for Related Relief by IRANIAN AMERICAN BAR ASSOCIATION, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Memorandum in Support, # 2 Exhibit Proposed Amended Complaint, # 3 Exhibit Rule 7(m) Correspondence, # 4 Text of Proposed Order)(Freedman, John) (Entered: 10/09/2017)
104 NOTICE OF SUPPLEMENTAL AUTHORITY by IRANIAN AMERICAN BAR ASSOCIATION, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., (Attachments: # 1 Exhibit Supplemental Authority to ECF No. 103)(Freedman, John) (Entered: 10/11/2017)
105 ORDER granting in part and denying in part 103 Motion to Lift Stay and for Related Relief. The stay is lifted. The Plaintiffs may file the Second Amended Complaint and re−file their motion for preliminary injunction. Defendants' opposition to the motion for preliminary injunction is due on or before October 19, 2017. The court will hear argument on the motion for preliminary injunction at 9:30 a.m. on November 2, 2017. Signed by Judge Tanya S. Chutkan on 10/12/2017. (lctsc2). (Entered: 10/12/2017)
106 AMENDED COMPLAINT against All Defendants filed by PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, JANE DOE, PARS EQUALITY CENTER, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, JOHN DOE, Mohammad Reza Shaeri, Reza Zoghi, Montra Yazdani, Sepideh Ghajar, Mohammad Jahanfar.(Freedman, John) (Entered: 10/12/2017)
107 MOTION for Preliminary Injunction by JANE DOE, JOHN DOE, Sepideh Ghajar, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, Mohammad Jahanfar, OMID MOGHIMI, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, Mohammad Reza Shaeri, Montra Yazdani, Reza Zoghi (Attachments: # 1 Memorandum in Support Memo of Law, # 2 Exhibit Exs 1−3, # 3 Exhibit Exs 4−16, # 4 Text of Proposed Order Proposed Order)(Freedman, John) (Entered: 10/12/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 35 of 39

10/13/2017 10/18/2017
10/18/2017
10/19/2017
10/19/2017 10/19/2017 10/19/2017 10/19/2017
10/25/2017 10/25/2017 10/25/2017 10/25/2017
10/26/2017

Set/Reset Deadlines/Hearings: Response to motion for preliminary injunction s due by 10/19/2017. Preliminary Injunction Hearing set for 11/2/2017 at 09:30 AM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 10/13/2017)
108 NOTICE OF SUPPLEMENTAL AUTHORITY by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Freedman, John) (Entered: 10/18/2017)
112 MOTION for Leave to File Supplemental Affidavit by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (See Docket Entry 108 to view document). (znmw) (Entered: 10/19/2017)
109 MOTION to Withdraw as Attorney of Amelia Friedman by ALI ASAEI, JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI (Mehri, Cyrus) (Entered: 10/19/2017)
110 NOTICE of Voluntary Dismissal re Jane Doe #10 (Mehri, Cyrus) (Entered: 10/19/2017)
111 NOTICE of Voluntary Dismissal re Jane Doe #11 (Mehri, Cyrus) (Entered: 10/19/2017)
MINUTE ORDER: Granting 109 Motion to Withdraw as Attorney. Attorney Amelia Friedman terminated. Signed by Judge Tanya S. Chutkan on 10/19/17. (DJS) (Entered: 10/19/2017)
113 Memorandum in opposition to re 107 MOTION for Preliminary Injunction filed by DANA J. BOENTE, ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Schwei, Daniel) (Entered: 10/19/2017)
114 NOTICE of Voluntary Dismissal re National Iranian American Council (Mehri, Cyrus) (Entered: 10/25/2017)
115 NOTICE of Voluntary Dismissal re John Doe #7 (Mehri, Cyrus) (Entered: 10/25/2017)
116 NOTICE of Voluntary Dismissal re John Doe #8 (Mehri, Cyrus) (Entered: 10/25/2017)
117 SUPPLEMENTAL MEMORANDUM to re 107 MOTION for Preliminary Injunction filed by ALI ASAEI, JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (Oct. 24 Order, Trump v. Hawaii), # 3 Exhibit 2 (Oct. 24 Executive Order), # 4 Exhibit 3 (Oct. 23 Memorandum))(Freedman, John) (Entered: 10/25/2017)
118 RESPONSE re 117 Supplemental Memorandum,, filed by ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Bennett, Michelle) (Entered: 10/26/2017)

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 36 of 39

10/27/2017 10/27/2017
10/30/2017 10/30/2017 10/31/2017 10/31/2017
10/31/2017
11/01/2017
11/02/2017 11/02/2017 11/02/2017

119 RESPONSE re 118 Response to Document, Defendants' Response to Plainitffs' Supplemental Submission filed by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (Freedman, John) (Entered: 10/27/2017)
MINUTE ORDER: The court will accept 117 Plaintiffs' Supplemental Submission, with the reminder that a party must first seek leave of court to file an amended pleading, and otherwise comport with Local Rule 15.1. If Defendants wish to respond to 117 Plaintiffs' Supplemental Submission, they shall do so by October 31, 2017. The court will hear argument on Plaintiffs' Motion for Preliminary Injunction on November 2, 2017. Unless otherwise noted, the court will not accept additional filings relating to Plaintiffs' Motion for Preliminary Injunction prior to the November 2 hearing. Signed by Judge Tanya S. Chutkan on 10/27/2017. (lctsc2). (Entered: 10/27/2017)
Set/Reset Deadlines: Response to plaintiff's supplemental submission is by 10/31/2017. (tb) (Entered: 10/30/2017)
MINUTE ORDER: Plaintiffs' 112 Motion for Leave to File Supplemental Affidavit denied without prejudice for failure to comply with Local Rule 7(m). Should Plaintiffs choose to refile their motion, they shall do so by Tuesday, October 31, 2017 at 5:00 p.m. Signed by Judge Tanya S. Chutkan on 10/30/2017. (lctsc2). (Entered: 10/30/2017)
Set/Reset Deadlines: Motion due by 5:00p.m. on 10/31/2017. (tb) (Entered: 10/31/2017)
120 MOTION for Leave to File Permission to File Declaration re 107 MOTION for Preliminary Injunction by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI (Attachments: # 1 Exhibit Declaration of Former National Security Officials, # 2 Exhibit Rule 7(m) Correspondence, # 3 Text of Proposed Order)(Freedman, John) Modified event title on 11/1/2017 (znmw). (Entered: 10/31/2017)
121 Memorandum in opposition to re 107 MOTION for Preliminary Injunction Response to Plaintiffs' Supplemental Submission (ECF No 117) filed by ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Schwei, Daniel) (Entered: 10/31/2017)
122 MOTION for Leave to File Declaration of Abolfazl Kowsari by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI (Attachments: # 1 Declaration Declaration of Abolfazl Kowsari, # 2 Exhibit Rule 7(m) Correspondance, # 3 Text of Proposed Order)(Wasik, Joanna) (Entered: 11/01/2017)
MINUTE ORDER granting 120 Plaintiffs' Motion for Leave to File a Supplemental Affidavit and 122 Plaintiffs' Motion for Leave to File Declaration of Abolfazl Kowsari. Signed by Judge Tanya S. Chutkan on 11/2/2017. (lctsc2). (Entered: 11/02/2017)
Minute Entry: Preliminary Injunction Hearing held on 11/2/2017 before Judge Tanya S. Chutkan: Plaintiffs are permitted to submit an amended complaint. Government's response to the amended complaint is STAYED pending ruling on plaintiffs' preliminary injunction motion. (Court Reporter Bryan Wayne) (tb) (Entered: 11/03/2017)
124 SUPPLEMENT (Joint Declaration) re 107 MOTION for Preliminary Injunction by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS

Case: 1:17-cv-255 As of: 08/06/2018 12:47 AM EDT 37 of 39

11/02/2017 11/03/2017
11/03/2017 11/06/2017 11/07/2017 11/08/2017

EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (znmw) (Entered: 11/03/2017)
125 SUPPLEMENT (Declaration of Abolfazl Kowsari) re 107 MOTION for Preliminary Injunction by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (znmw) (Entered: 11/03/2017)
123 AMENDED COMPLAINT against ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE, DANIEL R. COATS filed by REZA ZOGHI, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, JANE DOE, PARS EQUALITY CENTER, MOHAMMAD JAHANFAR, MONTRA YAZDANI, IRANIAN AMERICAN BAR ASSOCIATION, SEPIDEH GHAJAR, JOHN DOE, MOHAMMAD REZA SHAERI.(Freedman, John) (Entered: 11/03/2017)
126 NOTICE of Appearance by Hashim Mandayappurath Mooppan on behalf of All Defendants (Mooppan, Hashim) (Entered: 11/03/2017)
127 REQUEST FOR SUMMONS TO ISSUE filed by REZA ZOGHI, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, JANE DOE, PARS EQUALITY CENTER, MOHAMMAD JAHANFAR, MONTRA YAZDANI, SHIVA HISSONG, OMID MOGHIMI, IRANIAN AMERICAN BAR ASSOCIATION, SEPIDEH GHAJAR, ALI ASAEI, JOHN DOE, MOHAMMAD REZA SHAERI, NATIONAL IRANIAN AMERICAN COUNCIL.(Freedman, John) (Entered: 11/06/2017)
128 SUMMONS (1) Issued Electronically as to DANIEL R. COATS. (znmw) (Main Document 128 replaced on 11/9/2017) (znmw). (Entered: 11/07/2017)
129 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING before Judge Tanya S. Chutkan held on November 2, 2017. Page Numbers: 1−83. Date of Issuance: 11/08/2017. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 da ys, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

11/15/2017 12/05/2017

Redaction Request due 11/29/2017. Redacted Transcript Deadline set for 12/9/2017. Release of Transcript Restriction set for 2/6/2018.(Wayne, Bryan) (Entered: 11/08/2017)
130 NOTICE OF SUPPLEMENTAL AUTHORITY by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI (Attachments: # 1 Exhibit Supplemental Authority)(Freedman, John) (Entered: 11/15/2017)
131 SUPPLEMENTAL MEMORANDUM re 107 MOTION for Preliminary Injunction IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, NATIONAL IRANIAN AMERICAN COUNCIL, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., MOHAMMAD REZA SHAERI, MONTRA YAZDANI. (Attachments: # 1

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12/07/2017
12/20/2017 12/20/2017 12/21/2017 01/03/2018
01/03/2018
01/04/2018
01/10/2018
01/18/2018 01/31/2018 01/31/2018 02/22/2018
03/02/2018

Exhibit)(Freedman, John) Modified event title and link on 12/6/2017 (znmw). (Entered: 12/05/2017)
132 RESPONSE re 131 Memorandum, filed by DANIEL R. COATS, ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Schwei, Daniel) (Entered: 12/07/2017)
133 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. All Plaintiffs (Freedman, John) (Entered: 12/20/2017)
134 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DANIEL R. COATS served on 12/5/2017 (td) (Entered: 12/21/2017)
NOTICE OF CORRECTED DOCKET ENTRY: re 133 Summons Returned Executed as to Federal Defendant was entered in error and refiled said pleading as docket entry no. 134 . (td) (Entered: 12/21/2017)
135 STATUS REPORT AND REQUEST FOR A CASE MANAGEMENT SCHEDULE by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (Attachments: # 1 Exhibit Exhibits 1−8)(Freedman, John) (Entered: 01/03/2018)
136 MOTION for Briefing Schedule by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (See Docket Entry 135 to view document).(znmw) (Entered: 01/04/2018)
137 Memorandum in opposition to re 136 MOTION for Briefing Schedule filed by DANIEL R. COATS, ELAINE DUKE, KEVIN K. MCALEENAN, JEFFERSON BEAUREGARD SESSIONS, III, REX W. TILLERSON, DONALD J. TRUMP, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Schwei, Daniel) (Entered: 01/04/2018)
138 REPLY to opposition to motion re 136 MOTION for Briefing Schedule filed by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, OMID MOGHIMI, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MOHAMMAD REZA SHAERI, MONTRA YAZDANI, REZA ZOGHI. (Attachments: # 1 Exhibit Exhibit 1)(Freedman, John) (Entered: 01/10/2018)
139 NOTICE of Appearance by U.W Clemon on behalf of All Plaintiffs (Clemon, U.W) (Main Document 139 replaced on 1/19/2018) (znmw). (Entered: 01/18/2018)
140 NOTICE of Voluntary Dismissal re Mohammad Reza Shaeri (Mehri, Cyrus) (Entered: 01/31/2018)
141 ORDER: Dismissing without prejudice all claims asserted by Plaintiff Mohammad Reza Shaeri. Signed by Judge Tanya S. Chutkan on 1/31/18. (DJS) (Entered: 01/31/2018)
142 NOTICE OF SUPPLEMENTAL AUTHORITY by JANE DOE, JOHN DOE, SEPIDEH GHAJAR, SHIVA HISSONG, IRANIAN AMERICAN BAR ASSOCIATION, MOHAMMAD JAHANFAR, PARS EQUALITY CENTER, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC.,, MONTRA YAZDANI, REZA ZOGHI (Attachments: # 1 Exhibit Supplemental Authority)(Freedman, John) (Entered: 02/22/2018)
143 ORDER denying 136 Plaintiffs' Request for a Case Management Schedule. This case is temporarily stayed. This stay is not indefinite, but will last only until current

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07/31/2018

appellate proceedings concerning the September 24 Proclamation and October Refugee Order are complete. The court also denies without prejudice Plaintiffs' pending 107 Motion for a Preliminary Injunction. If circumstances change during the pendency of the appellate proceedings, Plaintiffs may file a motion to lift the stay and may then re−file a motion for a preliminary injunction. Signed by Judge Tanya S. Chutkan on 3/2/2018. (lctsc2). (Entered: 03/02/2018)
144 NOTICE of Voluntary Dismissal re Pars Equality Center and the Iranian−American Bar Association (Freedman, John) (Entered: 07/31/2018)